[Redacted], Margeret M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 16, 2021Appeal No. 2021002473 (E.E.O.C. Aug. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margeret M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021002473 Agency No. 2004-VI05-2020105940 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 19, 2021 (FAD), dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Staff Specialist, GS-9, at the Agency’s Veteran's Health Administration facility in Beckley, West Virginia. Complainant made contact to begin the EEO process on August 20, 2020 and she was assigned an EEO Counselor the following day. (Complaint File, pp. 1-5). She was also provided with a Notice of Rights and Responsibilities that provided in pertinent part that Complainant had: [t]he right to have your claim(s) addressed through the agency Alternative Dispute Resolution (ADR) program or EEO counseling, but not both. Participation in the ADR program is voluntary on your part and ADR may be entered into in lieu of traditional EEO counseling. If ADR is elected during the 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021002473 2 pre-complaint process, the counseling period may be extended up to but not more than 90 calendar days. Your agreement to participate in ADR must be in writing. When ADR is elected, the EEO counselor will only gather enough information on your basis (es) and claim(s) to assist the agency in making a procedural determination in the event resolution through ADR is not reached. The EEO counselor will have no further involvement in the matter until the counselor is advised of the completion of the ADR process or the end of the 90- day counseling period, whichever comes first. At that time, if a resolution is not reached through ADR or the 90-day counseling period has ended, a final interview will be conducted, and you will be issued a Notice of Right to File a Discrimination Complaint. Complaint File, p. 7. On September 18, 2020, Complainant received her Notice of Right to File a Formal Complaint from the Agency via email. The email stated: “You have the right to file formal…You will have 15 days from receipt of this notice to return these documents if you wish to file formal.” The email also indicated Complaint had the option to withdraw her complaint and the option to choose not to file at all. The email further stated that: if no documentation is received back from you within the 15 days allotted, the case will be automatically closed. This marks the end of counseling with you because counselors are only involved in the informal counseling stage. If you chose to file formal, you will receive a letter from an ORM Case Manager at some point and the Case Manager will be your point of contact for the remaining duration of your case. Complaint File, pp. 26-28. The email contained an attachment which advised Complainant that informal counseling was being closed and she had two options available: to file a formal complaint or to take no further action, indicating she did not wish to pursue her allegations. The attachment noted that if Complainant: “decide[d] to file a formal complaint, [she had] 15 calendar days from receipt of this notice in which to do so.” The attached Notice of Right to File a Discrimination Complaint also noted that if Complainant decided to file a formal complaint, she needed to do so within 15 calendar days of receipt of the Notice and advised her to use the attached form if she wished to do so. It also stated that the 15-calendar day time frame would not be extended due to the need to seek the Counselor’s assistance in completing the form. There is no mention of ADR or mediation in the email or the attachments. (Complaint File, pp. 26-34). A few days later, on September 21, 2020, Complainant emailed the EEO Counselor to clarify her complaints and she stated that was “willing to address these concerns via the Alternate Dispute Resolution process.” Complainant requested the EEO Counselor advise her how to move forward with this process. (Complaint File, pp. 64-65). Complainant followed up a week later on September 28, 2020 asking how the process would work and what the time frame would be. 2021002473 3 (Complaint File, p. 64). The EEO Counselor responded that same day that Complaint would receive a response from the EEO Program Manager and be asked for dates she was available for mediation. The EEO Counselor wrote: “If you choose to file formal complaint, the case manager that will be assigned to the case will inform you of any updates.” (Complaint File, p. 64). Complainant responded asking the EEO Counselor to “[p]lease explain informal and formal. I am under the impression this action is FORMAL, if that is not true, please let me know.” (Complaint File, pp. 63-64). On October 20, 2020, Complaint then sent two emails to the EEO Counselor in which she indicated she had not heard from anyone related to her request and asking for clarification regarding ADR and whether she could “only file one area at a time”. (Complaint File p. 63). The EEO Counselor responded that “[t]he mediation is out of my hands, but it does not stop you from filing a formal complaint.” (Complaint File, p. 63). On January 27, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: 1. On September 4, 2019, Complainant started performing duties outside of her position description; and 2. On July 2, 2020, a Human Resources employee failed to provide Complainant with the approved GS-11, Health System Specialist position description. The Agency dismissed these claims. In the text of the FAD, the Agency indicated it was dismissing the claims because Complainant did not timely file her formal complaint.2 Complainant filed the instant appeal. Complainant contends the dismissal was erroneous and fails to consider the alternative dispute resolution (ADR) process and the Notice of Rights and Responsibilities provided to her which indicated that she had the right to have her claims addressed through the EEO process or ADR, but not both. (Appeal, pp. 4-5). On March 26, 2021, Complaint requested an extension of time to gather further documents in support of her appeal and she was granted an extension until April 26, 2021. A number of additional documents were submitted. 2 However, the FAD also stated that the “complaint of discrimination is hereby DISMISSED in its entirety pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.” (Complaint File, pp. 105-106, emphasis in original). It appears this language was inserted by the Agency in error as there is no discussion in the body of its dismissal decision concerning failure to state a claim. 2021002473 4 ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) provides, in relevant part, that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106. That section requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so, unless the agency extends the time limits in accordance with 29 C.F.R. § 1614.604(c), which states these time limits are subject to waiver, estoppel and equitable tolling. Here, the record establishes that Complainant received her notice of right to file a formal complaint on September 18, 2020, but did not file her formal complaint until January 27, 2021, well beyond the 15-day filing period. Complainant now asserts that her untimely filing should be excused because the Agency confused the process. The Commission has previously held that an Agency may not dismiss a complaint based on Complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming the Complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 26, 1996). In essence, Complainant argues that she thought she was engaged in the ADR process and she believed she could only file in one area at a time. (Complaint File, pp. 109-110). She said she was told by the EEO Counselor that she would hear from the EEO Program Manager about mediation, but she never did. Complainant states the mediation she requested was never offered, she thought she had filed a formal request, and she had in good faith requested to use the ADR process, but she never received clarification. (Complaint File, pp. 85-87). Although it is clear Complainant was confused, she has not provided sufficient evidence or proof that the Agency misled her regarding the deadline to timely file a formal EEO complaint. Further, Complainant was informed on October 20, 2020, that there was nothing stopping her from filing a formal complaint and she still did not file her formal complaint until three months later in January 2021. Consequently, we find that Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. The Agency correctly dismissed the complaint as untimely filed pursuant to 29 C.F.R. § 1614.107(a)(2). CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 2021002473 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2021002473 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 16, 2021 Date Copy with citationCopy as parenthetical citation