0120160187
01-14-2016
Minnie M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Minnie M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160187
Agency No. 2003-0677-2015103721
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 15, 2015, 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.
BACKGROUND
During the period at issue, Complainant worked as a Clerk at the Agency's Veterans Affairs Kansas Health Care System in Topeka, Kansas.
On July 14, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the basis of disability.
On September 15, 2015, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency found that a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") dated June 23, 2015, was delivered to Complainant's address of record on June 24, 2015. The Notice notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until July 14, 2015, to file her formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
Complainant, on appeal, argues that during the relevant period she was "under a great deal of stress" by her supervisor. Complainant further states "please re-consider this appeal. I feel I have valid issues that need to be seriously considered even though a few days had pasted deadline."
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
Based on a thorough review of the record and consideration of the arguments on appeal, we determine that the Agency dismissal, due to the untimely filing of the formal complaint, was proper, based on the following documentation relating to transmission of the Notice. Specifically, the record contains a United Parcel Service Delivery Notification. In the notification, Complainant's street and city address of record are identified and was signed by Complainant. The notification also includes a tracking number which indicated that delivery was made on June 24, 2015.
The record contains a copy of the EEO Counselor's Report of Contact. Therein, the EEO Counselor stated that on September 8, 2015, she asked Complainant "why did it take her 20 days past the receipt of her Notice of Right to File to file her formal complaint, she responded, 'I don't know.'"
As the record establishes that the Notice was received on June 24, 2015, Complainant's formal complaint, filed on July 14, 2015, was more than fifteen days after the limitation period set forth in the regulations. Complainant has not presented adequate justification for extending the limitation period beyond fifteen days.
The Agency's final decision to dismiss the formal complaint on the grounds of untimely filing is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, 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 (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 14, 2016
__________________
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.
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