Tori H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120182249 (E.E.O.C. Oct. 31, 2018)

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

Tori H.,1
Complainant,

v.

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

Appeal No. 0120182249

Agency No. 200305492014102243

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final order dated June 11, 2018, adopting the EEOC
Administrative Judge’s (AJ’s) decision dismissing her 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. Upon review, the Commission finds that Complainant’s complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to an untimely filing.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Surgery Program
Manager at the Agency’s VA Medical Center facility in Dallas, Texas. On August 6, 2014,
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on
the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 with respect to twenty-one incidents occurring between 2006 and
2014 including: (1) denial of leave on various occasions, (2) being issued reprimands and other
disciplinary actions; (3) denial of promotions, (4) a non-selection, and other matters.

The record disclosed that Complainant received the notice of the right to file a formal complaint
on June 23, 2014, at the conclusion of informal counseling. The record also reflects that this notice
was signed for upon delivery at Complainant’s residence on June 30, 2014.

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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Complainant alleged that she was out of the country from June 27 through July 13, 2014, and that
she did not receive the notice until it appeared at her door on or around July 24 - 25, 2014.
Although the notice indicated that Complainant had to file a formal complaint within fifteen (15)
calendar days of its receipt, Complainant did not file her formal complaint until August 6, 2014,
which was beyond the limitation period.
ANALYSIS AND FINDINGS

Complainant contends that she was out of the country when the Notice of Right to File was
delivered and as a result, she was unable to file her complaint. The Commission has held that the
bare assertion of traveling during the time of receipt of an EEO document is not an adequate
justification to warrant an extension of the time limit for filing the complaint. See Elliot J. v. SSA,
Appeal No. 0120160437 (Feb. 22, 2018) (Commission affirmed dismissal of appeal where
Complainant received the Agency’s FAD on June 19, 2015, properly advising him that he had
thirty (30) calendar days after receipt to file his appeal with the Commission, but he did not file
until October 29, 2015. While acknowledging that his passport was proof that he traveled out of
the country during the time of the FAD’s delivery to his home, it offered nothing to dispute the
FAD’s receipt on June 19, 2015, and was therefore not an adequate justification for waiving the
time limit for filing.) Complainant offers no proof to dispute the fact that the Notice was delivered
and signed for at her address of record on June 30, 2014; therefore, her assertion that she was
traveling is insufficient to warrant an extension of the filing time frames.

Complainants contention on appeal that the dismissal was improper because it was erroneously
based on her failure to respond to the Agency’s Motion to Dismiss is displaced. The Commission
notes that the AJ’s decision dismissing the complaint was not based on Complainant’s failure to
respond to the Agency’s motion, but was instead based on Complainant’s failure to comply with
prescribed filing timeframes.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the AJ properly issued a decision dismissing
Complainant’s complaint for untimely filing. Therefore, we AFFIRM the Agency’s final order
adopting the AJ’s decision.

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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. 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 (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.

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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

October 31, 2018
Date