0120113671
11-21-2012
Caroline De Jesus, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Caroline De Jesus,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113671
Agency No. 200100052011101488
DECISION
Complainant filed an appeal with this Commission from the Agency's Final Decision dated June 28, 2011, dismissing 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist at the Agency's Veterans Administration Medical Center facility in San Juan, Puerto Rico. On April 25, 2011, Complainant filed a complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, age, and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On September 7, 2010, Complainant received a work-related electronic mail message from E1, who was "not supposed to contact" her due to an issue that occurred in 2002;
2. On September 8, 2010, after Complainant reminded E1 that he was not supposed to communicate with her, a co-worker (E2) stated to her, "Do you still work in IRM? Your request (to E1) is unreasonable and counterproductive."
In its Final Decision, the Agency dismissed the complaint on various grounds pursuant to 29 C.F.R. � 1614.107(a). The Agency found that Complainant received a Notice of Right to File a complaint on February 24, 2011, but filed her complaint on April 25, 2011, which is beyond the 15 day limit for timely filing of the complaint. The Agency noted that Complainant stated she was confused and because of that, exceeded the 15-day time limit. The Agency found no evidence that Complainant attempted to resolve her confusion before the time limit had expired. The Agency therefore dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely filing of the complaint.
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 days of receiving notice of the right to do so.
In the instant case, we find the complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2). The record discloses that Complainant received the notice of right to file a formal complaint on February 24, 2011. Although the notice indicated that Complainant had to file a formal complaint within fifteen calendar days of its receipt, Complainant did not file her formal complaint until April 25, 2011, 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.
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 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 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
November 21, 2012
__________________
Date
2
0120113671
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113671