01A34378_r
06-23-2004
Kathleen H. Shuey, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kathleen H. Shuey v. Department of Veterans Affairs
01A34378
June 23, 2004
.
Kathleen H. Shuey,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A34378
Agency No. 200H-0595-2002103305
Hearing No. 170-A3-8273X
DISMISSAL OF APPEAL
The record reveals that in a formal EEO complaint dated May 26, 2002,
complainant claimed that she had been discriminated against on the bases
of her age (59) and in reprisal for her previous EEO activity when on
June 17, 2002, she was reassigned to the position of Details Clerk in
the Health Management Services Line. The complaint was accepted for
investigation. Subsequent to the investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ).
On May 6, 2003, the agency filed a Motion for Summary Disposition with
the Commission. On May 28, 2003, the AJ issued an Order of Dismissal
wherein she canceled the hearing based on complainant's withdrawal of her
hearing request. The AJ remanded the instant complaint to the agency
for issuance of a final action. The record reveals that on April 29,
2003, complainant signed both a withdrawal of her hearing request and a
withdrawal of her complaint. Based on the withdrawal of the complaint,
the agency did not issue a final action.
On appeal, complainant contends that she did not intend to withdraw
her complaint and hearing request. Complainant argues that she had
only intended the withdrawal of her complaint and hearing request to
be effective if her complaint was settled. According to complainant,
the complaint was not settled, yet her former representative and agency
counsel nonetheless submitted the withdrawals to the AJ. Complainant
contends that agency counsel knew she no longer had this representative
and that agency counsel also knew that she did not wish to withdraw her
complaint and request for a hearing.
In response, the agency asserts that if complainant's representative was
not authorized to send the notice of withdrawal to the agency, but did
so anyway, complainant's recourse is against her representative rather
than the agency. The agency counsel stated that on May 15, 2003, she
received from complainant's representative complainant's withdrawal of
her complaint and request for a hearing. According to agency counsel,
she was informed by the individual she believed was still complainant's
representative that he had reviewed the agency's Motion for Summary
Disposition. Agency counsel maintains that such review indicated to
her that complainant had the same representative.
Upon review of the record, we find that complainant withdrew both
her request for a hearing and her complaint. Complainant signed both
withdrawals on April 29, 2003. Complainant has not submitted sufficient
argument or evidence to establish that the agency should have been
aware she no longer was represented by the individual who submitted the
withdrawals to the agency. If complainant did not intend to withdraw
her complaint and request for a hearing unless there was a settlement
and she did not authorize the individual who represented her to forward
her withdrawals to the agency, then complainant's recourse is against
the individual who represented her rather than the agency. Accordingly,
the instant appeal is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 23, 2004
__________________
Date