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

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2021002530 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Teresa L,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002530 Agency No. 2004-0540-2021101204 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated February 26, 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 relevant time, Complainant worked for the Agency as a Nursing Assistant, GS-6, in Clarksburg, West Virginia. On December 3, 2020, Complainant contacted an EEO Counselor regarding claims of discrimination. When informal attempts to resolve her concerns were not successful, Complainant filed the instant formal complaint on January 4, 2021, alleging that the Agency subjected her to discrimination based on sex when: 1. On October 17, 2019, [a named individual] subjected Complainant to sexual assault; and 2. From October 17, 2019 to November 3, 2020, management failed to take remedial action against [named individual]. 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 On February 26, 2021, the Agency issued the instant final decision. Therein, the Agency dismissed the instant complaint in its entirety in accordance with EEOC Regulation 29 C.F.R. § 1614.107 (a)(1). The Agency determined that the instant formal complaint contained the same claims Complainant previously addressed with an EEO Counselor on November 8, 2019 and which were identified as Agency Case No. 2004-0540-20201735. Specifically, the Agency contends that after Complainant initiated EEO contact on November 8, 2019, the EEO Counselor assigned to her case was unable to reach Complainant to continue processing her claims of discrimination. The record indicates that the EEO Counselor attempted to contact Complainant several times about her claims of discrimination and sexual harassment. After unsuccessful attempts to reach Complainant on November 12, 15, 19 and 20, on December 4, 2019, the EEO Counselor finally reached Complainant, who then indicated that she wanted to withdraw her pursuit of the EEO complaint process. On December 4, 2019, the EEO Counselor sent a Withdrawal Notice to Complainant via her email address. However, Complainant failed to respond to the EEO Counselor’s email or complete the Notice of Withdrawal. Thereafter, on December 6, 2019, the Agency issued Complainant Notice of her Right to File a Formal Complaint of Discrimination. Complainant did not file a formal complaint within 15 calendar days. Therefore, the EEO Counselor closed Complainant’s case on January 2, 2020. Following the Agency's dismissal of the instant matter in its decision dated February 26, 2021, this appeal followed. On appeal, Complainant contends that she does not recall contacting an EEO Counselor on November 8, 2019, about her claims of sexual harassment at the Agency's failure to act. Complainant, through counsel, maintains that she first contacted an EEO Counselor regarding claims 1 and 2 on December 3, 2020. ANALYSIS AND FINDINGS EEOC Regulation 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. The Agency dismissed the instant formal complaint in its entirety for stating the same claims previously raised. We note that the record reflects that Complainant never actually filed a prior formal complaint, as discussed above. We find, however, that the claim is more properly analyzed in terms of whether the claim has been abandoned. The Commission has held that “a complainant who receives counseling on an allegation but does not go forward with a formal complaint on that allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint.” Small v. U.S. Postal Service, EEOC Request No. 05980289 (July 16, 1999). Here, the record indicates that Complainant first sought EEO counseling regarding the matters raised in the instant complaint on November 8, 2019. The record further indicates, however, that Complainant did not continue to pursue the claim, until January 4, 2021, when she filed the instant formal complaint. 3 We therefore find that Complainant abandoned the matters raised in the instant complaint. Tate v. U.S. Postal Service, EEOC Request No. 0520060584 (Dec. 15, 2006) (claim abandonment when no complaint filed). Accordingly, where, as here, Complainant has abandoned her claims, dismissal is appropriate. CONCLUSION Accordingly, the Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons set forth herein. 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. 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 9, 2021 Date