EEOC Appeal 2020000610

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elden R.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000610
Agency No. 2003-0575-2019102404
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated August 29, 2019, 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 Physician
(Psychiatrist) at the Agency’s VAMC facility in Grand Junction, Colorado.
On July 2, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the bases of sex (male) and age when:
1. 	From December 6, 2018 through the present, CN, the Chief of Mental Health,
denied Complainant’s request for assistance and/or training on the Computerized
Patient Record System.
2. 	On December 14, 2018, CN issued Complainant a performance evaluation that
included notes containing suggestions on improving his performance, and concerns
about his “compliance.”
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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3. 	On December 14, 2018, CN told Complainant, “You will not be receiving any
bonus pay because of your poor performance.”
4. 	On December 20, 2018, EH, Acting Chief of Staff, failed to take action when
Complainant notified him that CN “disregards his concerns.”
5. 	On January 16, 2019, CN denied Complainant’s request to have time blocked out
during the day, so that he could complete required training in the Talent
Management System.
6. 	On January 18, 2019, CN suspended Complainant’s clinical privileges for “safety
concerns.”
7. 	On January 21, 2019, CN reassigned the Complainant from his position as a
Psychiatrist and Pain Management Physician, Mental Health Department, to
Quality, Safety, and Value Department.
8. 	On February 22, 2019, CN reassigned Complainant from the Quality, Safety, and
Value Department to the Education Department.
9. 	On March 6, 2019, CN initiated an administrative fact-finding against the
Complainant, regarding his mishandling or paperwork, delays in completion of
patient notes, and poor work performance.
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
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall
dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R.
§ 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of
receiving the notice of the right to do so.
The record discloses that Complainant stated that he received the notice of right to file a formal
complaint on June 10, 2019. 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 July 2, 2019, which is beyond the limitation period. On appeal, Complainant has
not offered adequate justification to warrant an extension of the time limit for filing the complaint.
Rather Complainant, on appeal, states he contacted the EEO counselor and thought she would
make changes and file his complaint for him, that he had computer problems, and that his wife had
been ill. It is Complainant’s responsibility to file the formal complaint, as set forth in the notice
he received.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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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
September 9, 2020
Date