EEOC Appeal 2020001695

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vernia M., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2020001695
Agency No. 200H-0631-2019104207
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated November 5, 2019, dismissing 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 an Advanced Medical
Support Assistant, GS-6, at the Agency’s VA Central Western Massachusetts facility in Leeds,
Massachusetts.
On September 30, 2020, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of disability and reprisal for prior protected EEO activity when:
1. 	the Agency collaterally attacked a decision by the Department of Labor’s (DOL)
Office of Workers Compensation Programs (OWCP) when her medical records that
were maintained by the OWCP were accessed and she was offered a position that
the OWCP had previously found unsuitable for her; and
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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2. 	On April 24, 2019, Complainant was notified that her health insurance had been
cancelled;
3. 	On June 7, 2019, Complainant was notified that her health insurance was still
canceled, effective March 17, 2019; and
4. 	On July 7, 2019, Complainant was threatened with loss of benefits of employment
if she did not accept a position as a Medical Administrative Assistant.
The Agency dismissed the complaint in its entirety. It dismissed claims (1), (3), and (4) pursuant
to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim; and claim (2) pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely contact with an EEO counselor. The instant appeal followed.
ANALYSIS AND FINDINGS
Failure to State a Claim
An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 	29 C.F.R. §§ 1614.103, .106(a). 	The
Commission's federal sector case precedent has long defined an "aggrieved employee" as one who
suffers a present harm or loss with respect to a term, condition, or privilege of employment for
which there is a remedy. 	Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning
of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to
29 C.F.R. § 1614.107(a)(1).
With respect to claim (1), the Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC
Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No.
05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition,
involves a challenge to another forum's proceeding, such as the grievance process, the workers'
compensation process, an internal agency investigation, or state or federal litigation. See Fisher v.
Department of Defense, EEOC Request No. 05931059 (July 15, 1994). Without allegations of
other instances of discrimination, this claim is outside of EEOC jurisdiction and this is not the
proper forum for Complainant to have raised this issue. See e.g., Pirozzi v. Department of the
Navy, EEOC Request No. 05970146 (Oct. 23, 1998); Abiuso v. U.S. Postal Service, EEOC Appeal
No. 0120100241 (Oct. 5, 2010). Thus, we find dismissal of this claim was proper.
With respect to claim (4), we also find Complainant has failed to state a claim. Claim (4) alleges
that Complainant was threatened with loss of benefits of employment if she did not accept a
position as a Medical Administrative Assistant. However, there is no evidence that Complainant
has suffered an adverse action with respect to this allegation.

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The Commission has held that when verbal remarks have no accompanying concrete agency
action, these remarks do not state a claim. See Backo v. United States Postal Service, EEOC
Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.
05940695 (February 9, 1995). Therefore, we find that this claim also does not state a viable claim
of discrimination or unlawful retaliation.
Untimeliness
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 forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within
forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.107(b)
provides, in pertinent part, that the agency shall dismiss a complaint that fails to comply with the
applicable time limits contained in §1614.105, unless the agency extends the time limits in
accordance with 29 C.F.R. §1614.604(c). EEOC Regulation 29 C.F.R. §1614.604(c) provides that
the time limits are subject to waiver, estoppel and equitable tolling.
With respect to claims (2) and (3), the record shows that Complainant’s health insurance was
cancelled on March 17, 2019 and Complainant was notified of the cancellation on April 24, 2019.
However, Complainant did not contact an EEO counselor until June 19, 2019, which is more than
45 days after she was notified. Therefore, claim (2), which alleges discrimination on April 24,
2019, when Complainant learned of the 	cancellation, is untimely. The Commission has
consistently held that a complainant must act with due diligence in the pursuit of her claim. See
Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004);
O'Dell v. Department of Health and Human Service, EEOC Request No. 05901130 (December 27,
1990). Complainant has failed to offer sufficient justification for extending or tolling the time limit.
Therefore, we find dismissal of this claim on this basis was proper.
With respect to claim (3), we agree with the Agency that Complainant has failed to state a claim.
Complainant had already been notified of the cancellation of the insurance on April 24, 2019, as
discussed in claim (2). The allegation that Complainant was notified that the health insurance was
still canceled does not allege a present harm or loss with respect to a term, condition, or privilege
of employment. The claim, as written, without more, simply does not state a viable claim of
discrimination or unlawful retaliation.
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 3, 2020
Date