Juanita A. Leonard, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 6, 2009
0120090178 (E.E.O.C. Mar. 6, 2009)

0120090178

03-06-2009

Juanita A. Leonard, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Juanita A. Leonard,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120090178

Agency No. 2001-0521-2008102977

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dated September 23, 2008, 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. In her complaint, as defined by the FAD, complainant alleged

that she was subjected to discrimination based on her disability and

reprisal for prior protected EEO activity when:

1. on or about April 21, 2008, her request for Family and Medical Leave

Act (FMLA) [leave] was denied, and she had to work her regular duty;

2. on or about April 28, 2008, her supervisors made repeated requests

for additional information in support of her FMLA request, which delayed

approval;

3. on or about April 28, 2008, her supervisor discussed her medical

information with fellow employees, indicating that she had been released

to "full-duty status";

4. on or about May 6, 2008, her supervisors disputed the medical

certificate regarding her physical condition;

5. on or about May 6, 2008, and ongoing, complainant was denied light

duty status as instructed by a physician's statement; and

6. on or about May 19, 2008, her supervisor scheduled her to work the

midnight shift.

The FAD dismissed the entire complaint for failure to timely file the

complaint. 29 C.F.R. � 1614.105(d) & .107(a)(2). It reasoned

that complainant received her notice of right to file a complaint on

June 21, 2008, but did not file her complaint until July 16, 2008,

beyond the 15 calendar day time limitation.

The notice of right to file a complaint advised complainant that she must

file her complaint within 15 calendar days of receipt of the notice, and

provided any of three addresses for doing so. The notice advised that

while complainant may contact the EEO counselor with questions about

how to complete the formal complaint form, the 15 day time limitation

would not be extended for this reason. A postal domestic return receipt

signed by someone at complainant's address indicates the above mailing

was received on June 22, 2008.1

On June 24, 2008, complainant sent an e-mail to the EEO counselor

reminding her of her written June 10, 2008, request for the counselor to

change somewhat her characterization of complainant's claims, and asked

for some additional changes. Complainant's e-mail stated that these

changes needed to be made before she filed her complaint, requested

the time limit to file her complaint be stayed, and asked if it could

not be extended, for her to be contacted. The counselor was out of the

office from June 10 through 13, 2008, and from June 23 through 27, 2008.

The counselor did not respond to the e-mail. Complainant suggested

that she delayed filing her EEO complaint because she was waiting for

the counselor and her to agree on the definition of the claims raised

with the counselor.

The agency avers, and complainant does not dispute, that complainant

was represented by a union president, and complainant herself is a union

secretary. Nor does she dispute the agency's contention that she has had

training on the EEO process. The notice of right to file a complaint

was unambiguous, and the agency never informed complainant that the 15

day time limit had been extended. Given all this, we find complainant

was not justified in relying on the counselor's failure to respond to

the June 24, 2008, e-mail as a reason to delay filing her complaint.

29 C.F.R. � 1614.604(c).

The FAD is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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 (S0408)

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 (Z1008)

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

March 6, 2009

__________________

Date

1 The individual who signed the domestic return receipt wrote a receipt

date of June 22, 2008. However, the domestic return receipt bore a

return postmark of June 21, 2008, indicating the delivery was actually

made by that day.

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2

0120090178

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090178