Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142301
Agency No. 2004-0688-2014100493
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 10, 2014, dismissing his 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. and 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 Respiratory Therapist, at the Agency's VA Medical Center facility, in Washington, DC.
On November 6, 2013, Complainant contacted an EEO counselor. Complainant received a Notice of Right to File a Discrimination Complaint on February 7, 2014. On April 7, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (Greek), sex (male), and age (58), when:
1. From April 2011 to the present, management denied Complainant the opportunity to change his employment status from part-time to full-time employment;
2. On August 8, 2013, Complainant became aware that he was not selected for the position of Respiratory Therapist, Vacancy Announcement VHA 13-939477-MER.
3. On August 14, 2013, Complainant's supervisor, Chief, Medical Service, Respiratory Therapy accused Complainant of leaving work 10 minutes early;
4. On an unspecified date in August 2013, his supervisor accused Complainant of leaving a dirty piece of equipment in a patient's room;
5. On October 6, 2013, Complainant was informed that he was not selected for the position of Respiratory Therapist, Vacancy Announcement VHA 13916047 MER;
6. On October 22, 2013, Complainant's supervisor accused Complainant of improperly setting up a piece of equipment;
7. On October 22, 2013, Complainant's supervisor accused Complainant of a medication error;
8. On October 30, 2013, Complainant's supervisor told Complainant that Complainant was under investigation for questionable patient care;
9. For last seven months beginning November 2013 and continuing, Complainant's supervisor has denied Complainant's requests to change his tour of duty;
10. From November 2013 and continuing, Complainant's supervisor has denied Complainant's requests to work overtime, therefore "depriving" Complainant of income;
11. From November 2013 and continuing, Complainant's supervisor has "refused" to provide Complainant a written copy of his work expectations;
12. On unspecified dates, Complainant's supervisor has stated Complainant was "having behavior problems;"and
13. On an unspecified date, management accused Complainant of "illegally setting up a ventilator."
In addition, on May 2, 2014, Complainant provided the Agency with a document, entitled "Addendum to the EEO Complaint Already Filed." He sought to amend the pending complaint to allege continuing discrimination that occurred after the filing of the original complaint.
The record discloses that Complainant received the Notice of Right to File a Formal Complaint on February 7, 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 his formal complaint until April 7, 2014, which was beyond the limitation period.
Agency Decision
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 Agency reasoned that Complainant forwarded his formal complaint on April 7, 2014. To have timely filed, Complainant's complaint should have been received no later than February 22, 2014. The Agency found that Complainant "did not provide a specific reason or explanation as to why [Complainant] waited 60 days after having received the UPS package to contact the Counselor to request a VA Form 4949."
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint.
29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss 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).
The record in this case indicates that complainant received a notice of the right to file a formal discrimination complaint on February 7, 2014. The notice informed complainant that he had fifteen days from the date of receipt of the notice in which to file a formal complaint. The record further reflects that complainant did not file a formal complaint within fifteen days of his receipt of this notice but, instead filed the formal complaint on April 7, 2014.
On appeal, Complainant acknowledged that he filed his complaint late. He asserts that the EEO Counselor did not include the Form 4939 with the Notice of Right to File Complaint. There is no evidence that Complainant was diligent in requesting a copy of the form when he received the notice, which informed him that his complaint had to be filed within 15 days of receipt of the notice. Instead, he filed 60 days late.
In this case, we find that Complainant has failed to present adequate justification, pursuant to 29 C.F.R. § 1614.604(c) for extending the filing period for filing this complaint (Agency Number 2004-0688-2014100493). We note, however, that the scope of the subject complaint covers the period up to November 6, 2013, which was the date of his EEO contact. The complaint does not extend to any claims arising after November 6, 2013. To the extent that Complainant wishes to file a new complaint that raises claims of discrimination for incidents occurring after November 6, 2013, he should contact an EEO counselor to initiate the EEO process for these new claims. Otherwise, we find that the dismissal of the subject complaint was appropriate.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 3, 2014
__________________
Date
2
0120142301
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120142301