U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Justine R,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120180630 Agency No. 200H06202017100263 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's November 6, 2017 dismissal of her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse ("RN") III at the VA Medical Center in Montrose, New York. On October 25, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (physical) when: 1. Management violated a February 2016 reasonable accommodation agreement that "[Complainant] will work no more than 8 hours per shift unless a facility emergency is called by the Medical Center Director, [Complainant] will stay 1 extra hour as needed for emergency staffing purposes:" a. On September 22, 2016, she was required to work an additional 16 hours beyond her 8-hour restriction; b. On September 5, 2016, she was required to work for a portion of a second consecutive shift; and c. On May 12, 2016, she was required to work for a portion of a second consecutive shift. 2. On or around October 14, 2016, and other unspecified dates, the Agency denied Complainant's alternate reasonable accommodation request for reassignment to a vacant light duty position with her same salary and benefits. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. §1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105 and §1614.106, unless the agency extends the time limits in accordance with §1614.604(c). Under 29 C.F.R. §1614.106(b) a complainant must file his or her written complaint with the agency that allegedly discriminated against them within 15 calendar days after the date of receipt of the "Notice of Right to File an Individual Complaint" required by 29 C.F.R. §1614.105(d), (e), or (f). The statutory 15-day time limit is subject to waiver, estoppel, and equitable tolling pursuant to 29 C.F.R. § 1614.604(c). The Agency has provided evidence, and Complainant does not dispute, that she received "Notice of Right to File a Formal Complaint" on November 22, 2016. Enclosed with the Notice, was a Cover Letter and the Form 4939 used for filing formal EEO complaints. All three documents provided clear instructions for filing, including the 15-day requirement. However, Complainant did not file her Formal Complaint until October 25, 2017. On appeal, Complainant's attorney argues that her complaint warrants equitable tolling pursuant to 29 C.F.R. § 1614.604(c) because Complainant timely completed her formal complaint, but he sent it to the wrong email address, noting their prompt response when they were made aware of the mistake. Specifically, Complainant completed her Form 4939, and gave it to her attorney, who filed it on December 5, 2016, two days before the deadline. However, he omitted the last character of the name on the email address, so it never reached the Agency's EEO office. The email did not bounce back nor did the recipient respond that it had been sent to the wrong address. Complainant and her attorney did not take any further action until October 11, 2017, when Complainant's attorney mailed her complaint to the local EEOC Field Office requesting a hearing before an EEOC Administrative Judge, as the Agency had not taken any action on the matter for over six months. On October 19, 2017, the Agency responded that Complainant had not filed her Formal Complaint. On October 25, 2017, her attorney mailed a copy of the Form 4939 he attempted to send on December 5, 2016, and the matter was dismissed as untimely. Complainant's appeal states that equitable tolling is appropriate because otherwise it would be "unfair" to "punish" her when she timely completed the Form 3949, and believed it had been filed. In limited circumstances, we have exercised our authority under 29 C.F.R. § 1614.604(c), based on the principles of equitable tolling, where the complainant completed and signed a formal complaint within the 15-day limitation period, gave it to his or her attorney, and due to the attorney's actions, the complaint was filed after the limitation period. We do not consider her Attorney's corrective actions "prompt." Rather, Complainant's attorney waited ten months without any confirmation from the Agency that it received Complainant's formal complaint. The Agency provided read receipts to emails, and letters acknowledging and instructing Complainant at earlier stages in the EEO process. The prolonged lack of response to the Agency's silence indicates lack of due diligence and does not warrant equitable tolling. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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 April 11, 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180630 5 0120180630