[Redacted], Ramon L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 9, 2021Appeal No. 2021003203 (E.E.O.C. Sep. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ramon L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003203 Agency No. 200I-0544-2021102324 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 29, 2021, dismissing a formal complaint alleging 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. BACKGROUND During the period at issue, Complainant worked as a Medical Support Assistant, GS-6, at the Agency’s Columbia VA Health Care System in Columbia, South Carolina. On February 19, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On March 23, 2021, Complainant filed a formal complaint claiming that the Agency discriminated against him based on disability when, on December 14, 2020, the Supervisory Medical Support Assistant issued Complainant a Performance Appraisal with an overall rating of “unacceptable.” In its final decision dated April 29, 2021, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). 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. 2 2021003203 The Agency found that Complainant’s initial EEO Counselor contact was on February 19, 2020, which it found to beyond the 45-day limitation period. The instant appeal followed. On appeal, Complainant argues that he had extensive left arm rotator cuff surgery on January 7, 2021. Consequently, Complainant explains that he was on approved Family and Medical Leave Act (FMLA) leave, he was under heavy anesthesia and other medications prescribed by his physician, and he was unable to timely contact the EEO Counselor. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. Here, the only alleged discriminatory incident at issue occurred on December 14, 2020. Therefore, Complainant had 45 days, or until January 28, 2021 to timely contact an EEO Counselor. However, Complainant did not initiate EEO Counselor contact until February 19, 2021. Complainant argues that his surgery delayed his ability to timely contact an EEO Counselor and so his untimely contact should be excused. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. In Weinberger v. Dep’t of the Army, EEOC Request No. 05920040 (Feb. 21, 1992), the Commission held that when a complainant claims that a physical condition prevented him or her from meeting a particular deadline, the complainant must be so incapacitated by the condition as to render him or her unable to make a timely filing. On appeal, Complainant submits documentation indicating that he had rotator cuff surgery on January 7, 2021. However, Complainant also submits a timeline outlining his correspondence with the Agency during the period before and after his surgery and during the 45-day limitation period. Specifically, Complainant notes on the timeline that he contacted Human Resources on January 22, 2021, because his FMLA paperwork had incorrect dates. Complainant states that “he did not receive a paycheck - I had to call my supervisor and timekeeper (every two weeks) to request them to correct my timecard and pay me for the hours I earned for the pay period.” Consequently, by his own admission, Complainant indicates that he was not so incapacitated that he was unable to conduct business and was prevented from contacting the EEO Counselor within 45 days of the last alleged incident. Therefore, Complainant has not provided adequate justification for extending the limitation period beyond 45 days. CONCLUSION The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact is AFFIRMED. 3 2021003203 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). 4 2021003203 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 9, 2021 Date Copy with citationCopy as parenthetical citation