[Redacted], Yolanda P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionMay 20, 2021Appeal No. 2021001574 (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 Yolanda P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001574 Agency No. 200I-0626-2020103592 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated December 8, 2020, dismissing a formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Medical Technician at the Agency’s VA Medical Center in Nashville, Tennessee. Believing that she was subjected to discrimination based on her national origin (Colombian) and in reprisal for prior protected EEO activity, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on May 28, 2020 the Agency issued her a Notice of Right to File Discrimination Complaint (hereinafter “Notice”) via email. Complainant sent a response to the email on May 30, 2020. She did not, however, file her formal EEO complaint until November 9, 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. 2021001574 2 On December 8, 2020, the Agency issued a d final decision dismissing the formal complaint. As an initial matter, the Agency considered the fifty pages of journal entries attached to the complaint, along with the Counselor’s Report and Notice, to frame the Complainant’s hostile work environment claim as comprised of the following events: 1) From on or about March 27, to April 2, 2020, the Lab Supervisor told Complainant: she was tired of her, and why was she there, and “You don’t even know how to read English because you don’t know how to follow instructions”; and “You came to this county[sic] to waste everything”, or words to that effect. 2) On or about April 7, 2020, Lab Supervisor accused Complainant of giving an antibody agent to Vanderbilt (a hospital); and of doing an improper procedure. 3) From on or about April 13, to May 5, 2020, Lab Supervisor told Complainant: “You are lazy; you don’t know how to organize your job and you make others work extra”; “you still don’t know how to do your job”; and “you don’t belong here and you don’t know how to follow instructions”. 4) On or about April 13, 2020, Lab Supervisor provided Complainant with a memorandum and demanded she sign it. 5) On or about April 14, 2020, Lab Supervisor stated: “She works here, I wish she didn’t” (about Complainant). 6) During May and September 2020, Complainant was falsely accused of disregarding supervisors’ requirements and was subject to complaints about her work. 7) On or about May 11, 2020, Lab Supervisor screamed at Complainant; “Put more attention”. 8) On or about June 1, 2020, Lab Supervisor screamed at Complainant: “You should ask before you ran out” (regarding a mask); “then used the F-k word”. 9) During October 2020, Complainant was provided incorrect information during a patient slide review and denied important information to do her job. 10) On November 2, 2020, Complainant was denied union representation during an evaluation. 2021001574 3 Without identifying particular events, the Agency dismissed “the allegations as presented above occurring prior to March 27, 2020” for not being “like or related” to the matters raised with the EEO Counselor, pursuant to 29 C.F.R. 1614.107(a)(2).2 As for a new claim regarding a FOIA (Freedom of Information Act) request, raised on November 22, 2020, the Agency dismissed it for failure to state a claim. An allegation regarding a transfer to the day shift, raised on November 17, 2020, was also determined not to be like or related to the counseled items. The matter was referred to an EEO Counselor for processing as a new complaint. Finally, the entire complaint was dismissed on the grounds that it was untimely filed. The Agency reasoned that since Complainant responded to the emailed Notice on May 30, 2020, they would view that date as the date of receipt. Therefore, in order to be timely filed, Complainant should have filed her complaint by Monday, June 15, 2020. Instead, Complainant waited until November 9, 2020. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. The record discloses, and Complainant does not dispute, that she received the emailed Notice by May 30, 2020. A review of the record shows that the email from the Counselor, as well as the attached letter and Notice, clearly informed Complainant that she had to file a formal complaint within fifteen (15) calendar days of its receipt. In her May 30, 2020 reply to the counselor’s email, Complainant described alleged harassment by her supervisor and stated “I want to pursue my claim.” The Counselor responded the following day, noting that he attempted to reach her by phone twice in the prior week, and specifically explained: “This email you responded to, called the Notice of Right to File, is how you are able to move forward if you wish.” Complainant, however, did not file her complaint until November 9, 2020, months beyond the fifteen-day time limit. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint3. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2 Claims (3) and (6) through (10) were determined to be like and related to the issues counseled. 3 In light of our determination we decline to address whether portions of the complaint were properly dismissed on alternative grounds. 2021001574 4 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). 2021001574 5 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