Tommy R.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 17, 2016

0520160483 (E.E.O.C. Nov. 17, 2016)

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

Tommy R.,1
Complainant,

v.

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

Request No. 0520160483

Appeal No. 0120161097

Agency No. 200I-VI07-2015103420

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120161097 (Apr. 26, 2016). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

On May 14, 2015, Complainant contacted the EEO Counselor regarding his allegations that he
had been subjected to discriminatory and retaliatory harassment. Complainant opted to
participate in the Agency’s Alternative Dispute Resolution (ADR) program. On August 11,
2015, the EEO Counselor issued Complainant a Notice of Right to File a Formal Complaint
(Notice) via email. Complainant indicated to the EEO Counselor that the matter was to be
mediated on August 13, 2015. In addition, Complainant noted that the EEO Counselor had
failed to list all of the events that he had alleged. Complainant and the EEO Counselor
subsequently discussed the scheduling of the mediation. After numerous delays, both parties
attended mediation on November 2, 2015. After the matter was not resolved, Complainant
contacted the EEO Office to determine how to proceed with his EEO complaint. On
November 10, 2015, Complainant filed a formal EEO complaint alleging that the Agency had

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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discriminated against him and subjected him to a hostile work environment on the bases of
national origin (Hispanic), disability, age, and in reprisal for prior protected EEO activity as
evidenced by multiple incidents.

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency
determined that Complainant received the Notice via email on August 11, 2015, but did not file
his formal complaint until November 10, 2015, beyond the 15-day time limit. Complainant
appealed and, in Tommy R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120161097
(Apr. 26, 2016), the Commission reversed the Agency’s dismissal. The Commission first
noted that while the Commission’s regulations do not expressly address service by electronic
mail, the matter was still pending in the ADR program when the Notice was issued.
Complainant submitted numerous emails supporting his assertion that he believed that the time
limit for filing his formal complaint should have been tolled while the matter was pending
mediation. Further, the record showed that mediation did not occur due to numerous
scheduling issues, and Complainant filed his formal complaint within 15 days after ADR
failed. Based on the specific circumstances present, the Commission found that the time limit
should have been extended for Complainant. Accordingly, the Commission reversed the
Agency’s final decision and remanded the matter for further processing.

In its request for reconsideration, the Agency argues that the Commission erred in reversing its
dismissal because the Commission has generally found that the time limits for filing a formal
complaint should not be extended while a complainant attempts to resolve the dispute through
ADR. In response, Complainant contends that he felt misled throughout the EEO process and
was led to believe that he could file his formal complaint after first completing the ADR
program.

Based on the specific circumstances in the instant case, the Commission found that the time
limit to file the formal complaint should have been extended for Complainant. Those
circumstances included Complainant’s receipt of the Notice via email prior to the
commencement of ADR and Complainant’s submission of evidence supporting his contention
that the Agency misled him about the process during the pendency of the mediation.
Complainant promptly filed his formal complaint within 15 days after ADR failed. The
Agency has not put forth any arguments which the Commission finds to be material to the
outcome of the underlying decision, or that were not previously considered in rendering the
underlying decision.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to DENY the request. The decision in EEOC Appeal No. 0120161097 remains
the Commission's decision. There is no further right of administrative appeal on the decision
of the Commission on this request. The Agency shall comply with the Order as set forth
below.

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ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §
1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision is issued. 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 is issued, 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 (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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
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court. “Agency” or “department” means the national organization, and not the local office,
facility or department in which you work.

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

November 17, 2016
Date