[Redacted], Marleen G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021003865 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marleen G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003865 Agency No. 2001-V107-2021102681 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 27, 2021, dismissing a formal complaint alleging 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 During the period at issue, Complainant worked as a Supervisory Medical Support Assistant, GS-8, at the Agency’s VA Southeast Network in Duluth, Georgia. On April 13, 2021, Complainant filed a formal complaint claiming that she was discriminated against based on sex when, on March 7, 2021, her application for a promotional opportunity to GS-9 was incorrectly scored and, as a result, she was denied an interview for the position. In its May 27, 2021 final decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that the instant complaint was a reconstruction of a prior claim that Complainant pursued through the EEO process and subsequently abandoned. The Agency further determined that Complainant pursued the instant complaint through the formal grievance process, and consequently, the complaint constituted a collateral attack on the negotiated grievance process. 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. 2021003865 2 The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Our review of the record supports that the instant complaint is a reconstruction of a prior claim Complainant raised before the Agency and subsequently abandoned. The record includes documentation supporting that Complainant initiated EEO Counselor contact on November 12, 2020 regarding her non-selection (promotion) for Vacancy Announcement CBTB-10890694 (Agency Case No. 200I-0619-2021100881). The record indicates that on December 9, 2020, Complainant was provided, via email, a notice of right to file a formal complaint (Notice) regarding this matter. The Notice informed Complainant that she had fifteen days from receipt of the Notice to timely file a formal complaint. See 29 C.F.R. § 1614.106(b). Email receipt confirmation included in the record reflects that Complainant read the notice on December 9, 2020. Complainant, therefore, had until December 24, 2020 to timely file the formal complaint. However, the record indicates that Complainant never filed the formal complaint. Consequently, the Agency closed Agency Case No. 200I-0619-2021100881 on January 4, 2021. The Agency noted on the closure, “withdrawal (no formal complaint filed)” and Complainant’s claim was effectively abandoned. Our review of the instant complaint reflects that Complainant is attempting to raise the same claim she previously abandoned in Agency Case No. 200I-0619-2021100881. In the instant formal complaint, Complainant requests to “[b]e promoted to GS 09 retroactively to the same date of selection for the Vendor Relations position CBTB-10890694-CHS.” This is the same vacancy mentioned in Complainant’s prior claim. We further note that the March 7, 2021 date Complainant indicates in the formal complaint as the date of alleged discrimination refers to the Agency’s March 4, 2021 notification that it was rejecting Complainant’s formal grievance submitted on December 21, 2020 involving the same non-selection (promotion) for the Vendor Relations position CBTB-10890694-CHS. The Commission has long held that once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Our review of the record supports that Complainant has attempted to reconstruct her prior claim, Agency Case No. 200I-0619-2021100881, in the instant formal complaint. However, Complainant has not provided adequate justification for the revival of this claim which she abandoned when she failed to file a formal complaint within the fifteen-day limitation period. Therefore, the Agency properly dismissed the instant complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for stating the same claim as previously raised. 2021003865 3 CONCLUSION The Agency’s final decision dismissing the formal complaint for the reason discussed above is AFFIRMED. 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. 2021003865 4 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). 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 September 27, 2021 Date