Diane H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 19, 2018

2019000146 (E.E.O.C. Nov. 19, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Diane H.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019000146

Agency No. 200H-0626-2015101967

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated June 11, 2015, dismissing a formal
complaint of unlawful employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency in Murfreesboro, Tennessee. On
April 7, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination based on and in reprisal for prior protected EEO activity.

On June 11, 2015, the Agency issued the instant final decision. The Agency dismissed the
formal compliant in its entirety as untimely filed, pursuant to EEOC Regulation 29 C.F.R. §
1614.107(a)(2). The Agency found that its Notice of Right to File a Discrimination Complaint
(hereinafter referred to as “Notice’) dated March 12, 2015, was delivered to Complainant’s
attorney of record on March 17, 2015. The Notice informed Complainant that a formal
complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency
determined that Complainant waited until April 7, 2015, to file her formal complaint, which it
found to be beyond the requisite 15 days from the date of the receipt of the Notice.

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.
2019000146

2
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 notice of the right to do so.

Based on a thorough review of the record and consideration of the arguments on appeal, the
Commission concludes that the Agency dismissal, due to the untimely filing of the formal
complaint, was proper, based on the following documentation relating to transmission of the
Notice. Specifically, the record contains a United Parcel Service (UPS) Delivery Notification
(receipt). In the receipt, Complainant’s attorney’s street and city address of record are identified
and the receipt indicates that the delivery was signed for by an individual named “Gatano.” The
receipt also includes the tracking number which appears on the March 12, 2015 Notice.

The record therefore establishes that Complainant’s attorney received the Agency’s Notice on
March 17, 2015.2 Although the notice indicated that Complainant had to file a formal complaint
within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint
until April 7, 2015, 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. We are not persuaded by the arguments of Complainant’s
attorney that his heavy caseload prevented the timely filing of Complainant’s complaint.

CONCLUSION

The Agency's final decision to dismiss the formal complaint on the grounds of untimely filing is
AFFIRMED for the reason discussed above.

2 We note here that the record discloses that the Agency also mailed Complainant a copy of its
Notice advising Complainant of her right to file a formal complaint. The record further indicates
that Complainant received the Agency’s Notice on March 17, 2015.
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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.
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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

November 19, 2018
Date