EEOC Appeal 2020000567

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosena J.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2020000567
Agency No. 200P04632019104239
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission
(“EEOC” or “Commission”) from the Agency's September 30, 2019 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle
Operator at the Health Administrative Service (“HAS”), Alaska VA Health Care System facility
in Anchorage, Alaska.
On July 19, 2019, Complainant filed a formal complaint alleging discrimination by the Agency
on the basis of religion (Jehovah's Witness) when:
1. 	She was subjected to a hostile work environment including the following incidents:
a. 	Since January 2018, the HAS Chief, who Complainant names as the
Responding Management Official (“RMO”) refused to acknowledge her,
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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b. 	Since March 2018, staff has to wish her “Happy Birthday" on an annual
basis,
c. 	In June 2018, she was threatened with termination, and,
d. 	On April 17, 2019, RMO accused her of wrecking a government vehicle.
2. 	In January or February 2019, RMO placed her on “desk duty.”
On or about April 17, 2019, Complainant reported that the airbag light was on in the vehicle she
had been assigned to drive that day. Upon inspection, the Agency noted damage to the front
bumper. 	Complainant’s 	supervisor 	(“S1”), 	the 	Mobility Manager, 	with 	RMO’s 	approval,
initiated 	an 	investigation 	to 	determine 	whether 	Complainant 	failed 	to 	properly 	report 	a
government vehicle accident, and whether she damaged a government vehicle. 	Human
Resources (“HR”) notified Complainant that an “active investigation” was underway, and that
she would be placed on desk duty until it was complete. Complainant was interviewed on May 9,
2019, and it was determined that she caused the damage to the vehicle.
On June 11, 2019, the Director issued Complainant a “Rescindment of Abeyance Agreement.”
The referenced Abeyance Agreement was issued to Complainant in June 2018, and had deferred
a 9 day suspension (56 hours unpaid), conditioned on her performance for a period of 4 years.
The Director reasoned that because Complainant was found responsible for the April 17, 2019
damage to the government vehicle, she violated the terms of the Abeyance Agreement, and
reinstated the 9 day suspension, to be served from June 17 to 25, 2019.
On June 20, 2019, Complainant contacted an EEO Counselor. The first, and most detailed
allegation in the Counselor’s Report was the June 17 - 25, 2019, suspension for damaging a
government vehicle, with a bulleted list of harassing actions by RMO beneath it. Complainant
maintains that the suspension was based on RMO’s false statements, that RMO treats her
differently than her peers, often threatens to remove her, and sent an office wide email in March
2018 and 2019 reminding everyone to wish Complainant a happy birthday, in violation of her
known religious beliefs.
While Complainant’s July 24, 2019 Formal Complaint describes RMO’s alleged harassing
actions from the Counselor’s Report, and raises some related harassment allegations, it does not
include the June 17-25, 2019 Suspension.
The Agency dismissed Claims 1 and 2 for untimely contact with an EEO Counselor, pursuant to
29 C.F.R. §1614.107(a)(2). The Agency did not address the June 17-25 Suspension, finding the
issue was abandoned by Complainant during the counseling period.

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ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. § 1614.107(a)(2) provides 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. 	EEOC 	Regulation 	29 	C.F.R. 	§ 	1614.105(a)(1) 	requires 	that 	complaints 	of
discrimination should be brought to the attention of the Equal Employment Opportunity
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.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't
of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimination, but before all the facts that
support a charge of discrimination have become apparent. See Complainant v. United States
Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
Evidence in the record establishes that “reasonable suspicion” existed at the time each alleged
discriminatory act. In a June 27, 2019 letter to the Director, Complainant recounts that about two
years earlier, S1 “immediately stopped acknowledging [her]” when he heard her confirm to a
colleague that she was a Jehovah’s Witness after declining to sign a birthday card. In her Formal
Complaint, Complainant states, “[S1] refuses to acknowledge me when I come to his office. [A
colleague] has to get his attention.” Reasonable suspicion would also arise in March 2019, after
S1 allegedly ignored Complainant’s prior request not to be included on the department-wide
birthday reminder emails for religious reasons. The record reveals that Complainant emailed
multiple HR officials on April 17, 2019 and May 10, 2019, alleging that RMO was treating her
unfairly, and subjecting her to desk duty and an investigation when he did not do so for other
employees under similar circumstances.
Complainant initiated EEO contact on June 20, 2019. 	Based on a “reasonable suspicion”
standard, Claims 1 and 2 are untimely. On appeal, Complainant has not provided a sufficient
explanation for the delay in EEO contact to justify waiving the 45 day requirement.
Abandoned Issue
The Commission has long held that where a complainant raises a matter during counseling, but
does not later include it in the formal complaint, it is considered, under most circumstances, to
have been abandoned. See Williams v. Dep’t of the Navy, EEOC Appeal No. 0120055162 (Oct.
17, 2007).
On 	appeal, 	Complainant 	acknowledges 	that 	she failed 	to 	include the June 17-25, 	2019
Suspension in her Formal Complaint, but explains that she spoke to two EEO Counselors, one on
June 20, 2019, the other on June 24, 2019, and was under the impression that she raised two
separate complaints.

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Complainant contends that she did not realize that the EEO Counselor she spoke with about her
harassment allegations combined them with her initial allegation, which consisted of the June 17-
25, 2019 Suspension and RMO’s alleged false accusations.
The Notice of Right to File, which Complainant received on July 19, 2019, prominently listed
the 	June 	17-25, 	2019 	Suspension 	as 	a 	“matter 	presented 	in 	counseling.” 	Additionally,
Complainant, who engaged in prior EEO activity, had knowledge of the EEO process. Therefore,
we find the Agency properly determined the June 17-25, 2019 to be an abandoned issue when
Complainant did not include it in her formal complaint.
CONCLUSION
Accordingly we AFFIRM the Agency’s dismissal of Complainant’s complaint.
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.

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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
August 20, 2020
Date