0120100663
05-27-2010
Katherine M. Savannah, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Katherine M. Savannah,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100663
Agency No. 200406522009100820
DISMISSAL OF APPEAL
By Notice of Appeal postmarked December 9, 2009, complainant filed an
appeal with this Commission from the April 30, 2009 final agency decision
(FAD) concerning her EEO 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.
A copy of the Federal Express shipment receipt discloses that the FAD
was received at complainant's address of record as well as the address
of record of her representative on May 5, 2009. A review of the FAD
reveals that the agency properly advised complainant that she had
thirty (30) calendar days after receipt of its final decision to file
her appeal with the Commission. Therefore, in order to be considered
timely, complainant had to file her appeal no later than June 4, 2009.
On appeal, complainant contends that she never received the final decision
from the agency. Instead, complainant maintains that she contacted her
Congressman regarding her discrimination concerns and requested that
he make an inquiry to the agency on her behalf. Complainant further
contends that the only copy of the agency's final decision she received
was from her Congressman in correspondence from him dated June 9, 2009
in response to her inquiry to him. Complainant maintains that because
she did not receive the agency's final decision from the agency but
from her Congressman, the agency is in violation of EEOC regulations.
For this reason, complainant requests that the Commission remand the
complaint to the agency for processing.
Upon review, the Commission finds that complainant's appeal is untimely
filed and is properly dismissed in accordance with EEOC Regulations.
The record contains copies of Federal Express receipts indicating that
the agency's FAD was mailed to complainant's address of record and the
address of record of her representative on May 1, 2009 and delivered on
May 5, 2009. Even assuming as true complainant's allegation that neither
she nor her representative received the agency's FAD from the agency on
May 5, 2009, and only received the FAD from her Congressman on June 9,
2009, complainant waited another 6 months until December 1, 2009 to file
her appeal with the Commission. EEOC Regulation � 1614.402(a) simply
provides that a complainant may file an appeal with the Commission
within 30 days of receipt of the agency's dismissal, final decision
or action. Upon review, the Commission finds that complainant has not
offered adequate justification for an extension of the applicable time
limit for filing her appeal. Accordingly, complainant's December 9,
2009 appeal is hereby dismissed. See 29 C.F.R. � 1614.403(c).
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
May 27, 2010
__________________
Date
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0120100663
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100663