0120172524
01-04-2018
Michal J.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michal J.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120172524
Agency No. 200H-0518-2017102416
DECISION
By Notice of Appeal by and through his attorney sent by facsimile on July 21, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) concerning his 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.
The record reflects that the Agency sent the FAD to Complainant and his attorney via UPS on June 6, 2017, and UPS provided tracking numbers for this correspondence. When the UPS tracking number for the correspondence sent to Complainant's attorney is inputted into the online UPS tracking system, it shows he received the FAD on June 9, 2017. UPS indicates in the online tracking receipt that the correspondence was "left at" an office in the city and state of Complainant's attorney office, and was "received by" someone with the same initials as Complainant's attorney.
A review of the FAD reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file his appeal with the Commission. Therefore, to be considered timely, Complainant had to file his appeal no later than Monday, July 12, 2017. 29 C.F.R. � 1614.402(b). On appeal, Complainant's attorney writes that he received the appeal on June 22, 2017. Based on the UPS tracking information, we find he received it on June 9, 2017. Accordingly, the appeal is untimely and is dismissed.2
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. 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
January 4, 2018
__________________
Date
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.
2 Nevertheless, we advise the parties of the following. Complainant has a prior complaint pending before the EEOC's New York District Office under Hearing No. 520-2017-00371X, Agency No. 200H-0518-2016103787. In both complaints, Complainant alleges that the same co-worker is perpetrating harassment against him. We agree with the Agency's finding that on the complaint before us the EEOC does not have jurisdiction over its allegedly explicitly not enforcing a state court harassment prevention order (restraining or protection order) Complainant secured against the perpetrator. The EEOC does not have jurisdiction to enforce a state court order - Complainant must seek enforcement from the court that issued the order. We also agree with the Agency that the alleged perpetrator filing a protective order against Complainant in state court fails to state a claim because the Agency has no authority to prevent him from doing so. The Agency, nevertheless, has an ongoing legal obligation to prevent and stop harassment. Complainant is advised that if the alleged perpetrator continues to subject him to harassment, he can file motions with the EEOC hearings unit where his prior complaint is pending requesting to amend his complaint to add new incidents to his harassment claim. In the complaint before us the Agency dismissed some older incidents of alleged harassment allegedly perpetrated by the same co-worker against Complainant (and the Agency not taking effective action) for being untimely counseled. To the extent these examples in the complaint before us were not simply listed as background information, we observe that they are quite like the ones previously alleged and are actually part of Complainant's harassment claim in his prior complaint which is pending before an EEOC hearings unit.
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