Oda H.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0120142603 (E.E.O.C. Sep. 1, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Oda H.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120142603

Hearing No. 530-2012-00184X

Agency No. 2004-0785-2012100354

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission dated July 1, 2014 from the Agency’s April
16, 2014 final order concerning her EEO complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. For the following reasons, the Commission DISMISSES Complainant’s
appeal.

On November 30, 2011, Complainant filed an EEO complaint alleging that she was subjected
to discrimination based on age when:

Complainant was removed from her sales associate/cashier position effective October 7,
2011.

At the conclusion of the investigation on the complaint, the Agency provided Complainant with
a copy of the report of investigation and notice of her right to receive a final decision from the
Agency or to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). Complainant requested a hearing. Following a hearing, an EEOC
AJ issued a decision on April 1, 2014, finding Complainant failed to prove she was subjected

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.
0120142603

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to discrimination as alleged. On April 16, 2014, the Agency issued a final order fully
implementing the AJ’s finding no discrimination.

By regulation, a complainant’s appeal must be filed within 30 days of receipt of an agency’s
final action. 29 C.F.R. § 1614.402(a). A copy of the certified mail return receipt card reveals
that the final order was received by Complainant on May 2, 2014. A review of the final order
reveals that the Agency properly advised Complainant that she had 30 calendar days after
receipt of its final order to file her appeal with the Commission. Complainant’s appeal was
filed beyond the 30-day time limit. Complainant has not offered adequate justification for an
extension of the applicable time limit for filing her appeal. Accordingly, Complainant's appeal
is DISMISSED pursuant to 29 C.F.R. § 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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).
0120142603

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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

September 1, 2016
Date