[Redacted], Maynard K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 13, 2021Appeal No. 2021001535 (E.E.O.C. Sep. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maynard K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001535 Agency No. 200I-0005-2020101929 DISMISSAL OF APPEAL On January 7, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the November 25, 2020, final agency decision (FAD) concerning his EEO 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, Complainant’s appeal is DISMISSED. The record indicates that, on March 19, 2020, Complainant filed a complaint alleging that he was discriminated against and subjected to harassment based on disability (Post Traumatic Stress Disorder (PTSD), chronic anxiety, panic attacks, right radial nerve palsy, degenerative bone disease, tinnitus, and sleep apnea), and in reprisal (current EEO activity) as evidenced by the following events: 1. In October 2019, he was moved to a different campus; additional duties were added to his position; and he was ridiculed and belittled; 2. On January 13, 2020, he was not provided with the reasonable accommodation which he had requested in October 2019; and 3. On March 3, 2020, he was forced to resign. 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. 2021001535 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. When Complainant did not respond, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. With respect to claim 3, however, Complainant was only given appeal rights to the Merit Systems Protection Board (MSPB). With respect to claims 1 and 2, Complainant was informed that he had to file any appeal to the Commission within 30 days of his receipt of the final Agency decision. According to the record, Complainant was sent the Agency’s decision electronically on November 25, 2020. The Agency’s decision included a five-day presumption of receipt of the Agency’s decision. On December 28, 2020, Complainant attempted to file an appeal with the Agency. In his email, he wrote: Hello, I have my appeal and FAD attached. I’m not sure how to get it to the appropriate party. Sorry my health continues to decline, and I cannot afford an attorney, so I’m having to do this on my own. Respectfully, [Complainant]2 Later, on December 28, 2020, Complainant was advised that his case was closed, and that the Agency was not involved in the appeal process. Complainant was informed that pages 11 - 14 of the final decision provided portal links for him to file his appeal. On January 7, 2021, Complainant filed his appeal with the Commission. Complainant did not provide a statement on appeal or thereafter. At the latest (because of the Agency’s five-day presumption of receipt), Complainant received the Agency’s decision on November 30, 2020. We find that Complainant’s January 7, 2021, appeal was untimely filed. Complainant has not provided any justification for extending the 30- day time limitation period. A review of the Agency’s decision reveals that the Agency properly advised Complainant that he had 30 calendar days after receipt of its final decision to file his appeal with the Commission concerning claims 1 and 2. Although Complainant’s December 28th email maintains that he was not aware of how “to get [his appeal] to the appropriate party,” the Agency decision clearly provided him with this information. 2 Complainant’s notice of appeal form was signed and dated December 15, 2020. 2021001535 3 To the extent that Complainant maintains that a health concern prevented him from filing his appeal in a timely manner, we note that the Commission has long held that when a complainant claims that a physical condition prevents him or her from meeting a particular filing deadline, in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render them unable to make a timely filing. See Complainant v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, Complainant has made no such showing. Finally, we note that with regard to claim 3, even if Complainant’s appeal were timely filed, we would have no jurisdiction over this issue because he was only given appeal rights to the MSPB, not the Commission. Accordingly, his appeal concerning claim 3 is DISMISSED. CONCLUSION Accordingly, Complainant’s January 7, 2021 appeal is DISMISSED. 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. 2021001535 4 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). 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 13, 2021 Date Copy with citationCopy as parenthetical citation