[Redacted], Shela O., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, (Veterans Health Administration) Agency.Download PDFEqual Employment Opportunity CommissionMay 20, 2021Appeal No. 2021001680 (E.E.O.C. May. 20, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shela O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, (Veterans Health Administration) Agency. Appeal No. 2021001680 Agency No. 200H-0620-2021100180 DECISION On January 13, 2020, via counsel, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a December 22, 2020 final Agency decision (FAD) dismissing her 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 At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Program Analyst (Planetree Coordinator), GS-343-13, at the Veterans Affairs Hudson Valley Health Care System (Montrose Campus) in Montrose, New York. On November 6, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency unlawfully retaliated against her for prior protected EEO activity under Title VII when, effective February 24, 2020, she was reassigned to the position of Business Manager in Medicine and Specialties, an effective demotion.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 The Business Manager position is typically at the GS-11/12 level. Prior to the reassignment, by email human resources advised Complainant that if she moved into this position, she would be 2021001680 2 The Agency dismissed Complainant’s complaint because she failed to timely initiate EEO counseling. It found Complainant initiated EEO counseling on her reassignment claim on September 25, 2020, beyond the 45-day time limitation. It found that while Complainant sought to bring this claim on September 25, 2020, as an amendment to prior EEO complaint 200H- 0620-2019104798, it was too late because it already completed the EEO investigation and issued her (on August 27, 2020) her right to elect a hearing before an Administrative Judge (AJ) with the EEOC or a FAD without a hearing. Complainant filed the attempted amendment on September 25, 2020, with her election for a FAD. The instant appeal followed. On appeal, Complainant argues that her reassignment claim is like and related to two prior EEO complaints by her - identified as 200H-0620-2019104798 and 200H-0620-2019102854. The Agency completed the EEO investigation on complaint 200H- 0620-2019102854 and issued Complainant (on July 17, 2020) the right to elect a hearing before an AJ or a FAD without a hearing. On August 14, 2020, Complainant opted for a FAD without a hearing. Complainant argues that because the reassignment issue is like or related to issues in her two prior EEO complaints which were still pending, the Agency erred by not accepting her reassignment claim amendment and instead referring her to EEO counseling on the claim. She argues that had the Agency accepted her amendment, no EEO counseling would be required - and hence the 45-day time limit would not apply. In opposition to Complainant’s appeal, Agency counsel argues that the reassignment claim is not like or related to Complainant’s two prior EEO complaints. ANALYSIS AND FINDINGS A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. 29 C.F.R. § 1614.106. Complainant correctly argues that her two prior EEO complaints were pending when she filed her amendment - the Agency had not yet issued its FADs. But this misses the point. This regulation allows an amendment “at any time prior to the conclusion of the investigation”. Because the EEO investigations on both prior EEO complaints were completed prior to Complainant seeking bring her amendment, the amendment was too late. For this reason, we need not determine whether the attempted amendment was like or related to either of her two prior EEO complaints. The Agency correctly referred Complainant to EEO counseling. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). eligible for grade retention for two years which would then convert to pay retention after two years. In the subsequent Interim Medical Center Director’s notice to Complainant of the reassignment, Complainant was advised she will be “retained” in her new position “in an ‘incumbent only position description (PD)’ at the GS-13 grade level… [and]… [t]his assignment will not affect your pay or grade.” 2021001680 3 The Agency properly deemed September 25, 2020, as the date Complainant initiated EEO counseling on her reassignment claim - this was the date she attempted to bring this matter as an amendment to prior complaint 200H-0620-2019104798. We agree, for the reason found by the Agency, that Complainant failed to timely initiate EEO counseling on her reassignment claim. The FAD 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. 2021001680 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 May 20, 2021 Date Copy with citationCopy as parenthetical citation