Todd P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 13, 2018

2019000244 (E.E.O.C. Dec. 13, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Todd P.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019000244

Agency No. 200P-0612-2018103646

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated September 5, 2018, dismissing a formal
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., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency as an Electrician, WG-10, in
Mather, California.

On April 16, 2018, Complainant initiated contact with an EEO Counselor. Informal efforts at
resolution were not successful.

On May 31, 2018, Complainant filed a formal complaint, claiming that the Agency subjected
him to discrimination based on disability and age when:

1. Beginning in June 2017 until his retirement from the Agency on November 28,

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.
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2017, he was subjected to harassment. including but not limited to when he was
not provided the tools he needed to perform his job, when a co-worker asked not
to work with Complainant, and when he was issued a notice of proposed removal.

2. On or about May 17, 2017, he received a mid-term performance rating of
“unacceptable” or “needs improvement.”

3. On November 28, 2017, he was forced to retire from federal service.

The Agency dismissed claims 1 and 2 in accordance with EEOC Regulation 29 C.F.R.
§1614.107(a)(1). The Agency determined that claims 1 and 2 stated the same claims previously
raised by Complainant in a prior case, identified as Agency Case No. 200P-0612-2017-104234
and resolved by settlement agreement dated August 31, 2017.

Regarding claim 3, the Agency found that Complainant failed to contact an EEO Counselor in a
timely manner regarding his concerns in this claim. Consequently, the Agency dismissed claim
3 pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2).

This appeal followed.

ANALYSIS AND FINDINGS

Same Claim: Claims 1 and 2

The regulation set forth at 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 events 1 and 2 alleged to have occurred before the date that
a settlement agreement was executed on August 31, 2017. The Agency found that Complainant
had previously raised these events in a prior complaint which Complainant withdrew.

A review of the record indicates that the Agency failed to provide a copy of the prior EEO
complaint. We therefore cannot determine whether Complainant alleged some of the same
events in his prior EEO complaint. Thus, the Agency has failed to substantiate the bases for its
final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
We cannot find that the dismissal of claims 1 and 2 was appropriate.

Untimeliness of EEO Counselor Contact: Claim 3

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).
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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.

The record discloses that the alleged discriminatory event in claim 3, namely Complainant's
forced retirement occurred on November 28, 2017. However, Complainant did not initiate
contact with an EEO Counselor until April 16, 2018, which is beyond the forty-five (45) day
limitation period. Complainant has failed to provide any persuasive argument or evidence on
appeal.

CONCLUSION

Following a review of the record and the contentions on appeal, including those not specifically
addressed herein, we AFFIRM Agency final decision dismissing claim 3. However, we
REVERSE the Agency final decision dismissing claims 1 and 2. These claims are REMANDED
to the Agency for further processing in accordance with the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claims 1 and 2 in accordance with 29 C.F.R. §
1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory.
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Within seven (7) calendar days of the completion of each ordered corrective action, the Agency
shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital
format required by the Commission, referencing the compliance docket number under which
compliance was being monitored. Once all compliance is complete, the Agency shall submit via
FedSEP a final compliance report in the digital format required by the Commission. See 29
C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when
previously not uploaded, and the Agency must send a copy of all submissions to the Complainant
and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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 (T0610)
This decision affirms the Agency’s final decision in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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.
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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 13, 2018
Date