0120080084
01-22-2008
Maxine C. Johns, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Maxine C. Johns,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080084
Agency No. 2004-0659-2006102083
Hearing No. 430-2007-00166X
DECISION
Complainant filed a timely appeal with this Commission from the agency's August 21, 2007 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the 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.
During the period at issue, complainant was employed as a Level II Registered Nurse, at the agency's Mental Health Service, VA Medical Center, Salisbury, North Carolina.
On April 18, 2006, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On May 8, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that she was subjected to discrimination on the bases of disability and age when:
on February 8, 2006, she was denied a promotion to Nurse Level III.
At the conclusion of the investigation, complainant received a copy of the investigation report and requested a hearing before an EEOC Administrative Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the alternative, an Agency Motion for Dismissal or in the Alternative, a Decision Without a Hearing.
In its motion, the agency requested that the AJ dismiss the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim finding that complainant was not aggrieved or that the AJ issue a decision without a hearing on the merits. Specifically, the agency argued that complainant failed to establish a prima facie case of age and disability discrimination; and that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
On July 18, 2007, the AJ issued a decision dismissing complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on the ground of untimely EEO Counselor contact. The AJ concluded that the alleged discriminatory event occurred on February 8, 2006 but that complainant did not initiate contact with an EEO Counselor until April 18, 2006, which was beyond the forty-five (45) day limitation period.
On August 21, 2007, the agency implemented the AJ's dismissal of the instant complaint for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The record reveals that on February 8, 2006, complainant became aware that she was not selected for the position of Nurse Level III but did not initiate contact with an EEO Counselor until April 18, 2006, which is beyond the forty-five (45) day limitation period. On appeal, complainant presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that the agency properly implemented the AJ's dismissal of the instant complaint.
Accordingly, the agency's final order implementing the AJ's dismissal of the instant complaint is AFFIRMED.
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
January 22, 2008
__________________
Date
2
0120080084
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120080084
5
0120080084