0120182543
09-28-2018
Zachery V.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachery V.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120182543
Agency No. 200P-0605-2018102603
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 29, 2018, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS-6, at the Agency's Medical Center facility in Loma Linda, California.
On February 22, 2018, Complainant contacted an EEO Counselor alleging discrimination. The matter was not resolved informally. As such, on May 7, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age when:
1. On June 3, 2017, Complainant applied for the position of Human Resources Assistant (Employee Relations/Personnel Security) under Vacancy Announcement LL-17-COI-MPA-1958904, and later was informed the vacancy announcement had been cancelled.
2. On December 8, 2017, he was informed that he was not selected for the position of Human Resources Assistant (Employee Relations/Personnel Security) under Vacancy Announcement LL-17-COI-MPA-2012372-BU.
The Agency dismissed the complaint, pursuant to 29 C.F.R. �1614.107(a)(2), for failure to contact the EEO Counselor in a timely manner. The Agency indicated that Complainant contacted the EEO Counselor on February 22, 2018. The events raised by Complainant occurred on June 3, 2017 and December 8, 2017. The Agency found that Complainant's contact was beyond the 45-day time limit. As such, the Agency dismissed the complaint as a whole.
The instant appeal followed.
ANALYSIS AND FINDINGS
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).
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 Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Here, Complainant admits that his EEO counselor contact was untimely made. However, on appeal, he requests that we excuse his delay and order the Agency to process his complaint. He indicates he was delayed because in "mid-January 2018" his ex-wife passed away and he had to make the necessary arrangements. He also alleges, without detail, that his present fianc�e became ill "during the month of December [2017]."
After careful consideration of Complainant's appeal, we decline to excuse his untimely contact under the circumstances presented. First, we note that one of the two non-selections in his complaint occurred in June 2017, many months before these circumstances arose. Moreover, Complainant has provided no evidence to support a claim that he was unable to initiate EEO counselor contact, even by email or telephone, during the entire 45-day limitation period.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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.
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 28, 2018
__________________
Date
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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