[Redacted], Melba G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 8, 2021

Appeal No. 2021004584 (E.E.O.C. Dec. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melba G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021004584 Agency No. 200H-0631-2020104414 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 14, 2021, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical Support Assistant (AMSA), GS-6, in the Clinical Contact Center at the Edward P. Boland VA Medical Center in Leeds, Massachusetts. According to the Agency, Complainant first requested a reasonable accommodation, telework, in May 2020. On June 30, 2020, Complainant agreed to the Agency’s offer of an accommodation “with the condition of completion of training” until August 28, 2020. See Final Agency Decision at 2. On September 4, 2020, Complainant requested an extension of the reasonable accommodation (RA) telework agreement. The agreement was no longer in effect, as of September 7, 2020. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to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. 2021004584 2 On September 13 and 14, 2020, Complainant asked about the status of her RA request to telework following a verbal discussion with Agency officials on September 8, 2020. On October 1, 2020, Complainant again sought reconsideration of her telework request. Agency officials emailed her on October 16, 2020, advising that she needed to return to work and resubmit any RA requests, but otherwise she should adhere to the June 20, 2020 agreement. In December 2020, Complainant once again requested the status of her RA request to telework. In January 11, 2021 correspondence, that was certified as received by Complainant on January 27, 2021, Complainant's Supervisor advised her to resubmit her reasonable accommodation request and referred her to the Agency’s Supervisor for RA (RA Supervisor). On May 19, 2021, Complainant contacted an EEO Counselor regarding her RA telework agreement. On June 1, 2021, Complainant filed a formal complaint on the basis of disability. The Agency, in its decision, framed the claim as follows: 1. Beginning on September 9, 2020 and ongoing, Complainant’s request for a reasonable accommodation was denied. In its June 14, 2021 decision, pursuant to 29 C.F.R. § 1614.107(a)(2), the Agency dismissed Complainant's reasonable accommodation claim for untimely counselor contact. The Agency determined that Complainant's RA request was effectively denied on at least two occasions: October 16, 2020 and January 11, 2021. The Agency reasoned that Complainant had until March 15, 2021, 45 days from her January 27, 2021 receipt of management’s response, to timely contact an EEO Counselor. However, complainant waited until May 19, 2021, 113 days later, to initiate contact with the counselor. The instant appeal followed.2 On appeal, Complainant argues that because the Agency failed to respond to her new reasonable accommodation request, this constitutes a continuing violation and her EEO contact should be considered timely. Specifically, Complainant notes that she made requests for reasonable accommodation on: September 4, 2020; September 8, 2020; September 13, 2020; September 14, 2020; October 16, 2020; and in December 2020. She argues that all of these were new requests for continued telework as a reasonable accommodation and concerned the time period following the expiration of her temporary telework agreement. In response, the Agency reiterates that because Complainant did not make EEO contact within 45-days of receipt of the January 11, 2021 letter (January 27, 2021), her EEO contact was untimely. 2 In the final decision, the Agency noted that Complainant raised a January 20, 2021 claim of harassment, however, the matter was not included in the complaint. Moreover, according to the Agency, when asked by the EEO counselor for further details and an explanation for her late counselor contact, Complainant failed to provide any information. Since the matter was not included in the formal complaint, we shall not address it here on appeal. 2021004584 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). Here, the latest action related to Complainant’s RA request is January 27, 2021. It is undisputed that Complainant first contacted the EEO Counselor on May 19, 2021, which is beyond the forty-five (45) day limitation period. As noted above, Complainant argues that the Agency failed to respond to her repeated requests for a reasonable accommodation, specifically in light of the lapse of her RA telework agreement on September 7, 2020. In the eyes of Complainant, her repeated efforts to request a reasonable accommodation constituted a recurring violation, thereby resulting in timely EEO Counselor contact. The Commission has held that failure to provide a reasonable accommodation may constitute a recurring violation, that is, a violation that recurs anew each day that the agency fails to provide the accommodation. See Harman v. Office of Personnel Management, EEOC Request No. 05980365 (Nov. 4, 1999). However, despite Complainant’s contentions, we do not find the instant matter comprises a recurring violation. The record reflects that an Agency official emailed Complainant on October 16, 2020, stating that Complainant needed to return to work and adhere to the June 30, 2020 RA telework agreement. Additionally, Complainant was advised to submit any new reasonable accommodation requests. The record also discloses that, on January 27, 2021, Complainant received a response from her supervisor, citing the expired telework agreement, and again advising her to submit her RA request to the RA Supervisor. Consequently, we find that Complainant receipt of the supervisor’s reply, on January 27, 2021, triggered the time limit for initiating EEO contact. The instant case is distinguishable from those where a complainant requests a reasonable accommodation and the agency fails to respond to the request. See Mitchell v. Department of Commerce, EEOC Appeal No. 01934120 (Mar. 4, 1994). 2021004584 4 Here, the Agency responded to Complainant on multiple occasions and advised her to submit a new reasonable accommodation request. Nonetheless, the record does not contain any evidence indicating that Complainant submitted any new reasonable accommodation requests. Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. As such, the complaint was properly dismissed for untimely EEO Counselor contact. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 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. 2021004584 5 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 December 8, 2021 Date