[Redacted], Debbra R., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 4, 2021

Appeal No. 2019005883 (E.E.O.C. Jan. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Debbra R.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019005883 Agency No. 20DR-00SB-2018101938 DISMISSAL OF APPEAL By Notice of Appeal postmarked August 15, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a June 20, 2019 final Agency decision (FAD) concerning her equal employment opportunity (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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The FAD was accompanied by a “Certification of Service” indicating it was sent via first class mail to Complainant and her attorney (Attorney 1)2 on June 20, 2019, and advising that for timeliness purposes it shall be presumed that the recipients received the FAD within five calendar days after the date it was mailed. In the FAD, the Agency advised Complainant that she had thirty (30) calendar days after receipt to file her appeal with the Commission and provided the address for doing so. In her notice of appeal dated August 14, 2019, Complainant wrote that she received the FAD via email on July 15, 2019, and provided documentation of this showing it was accompanied by the Certification of Service. 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 The EEO counselor’s report indicated that Attorney 1 was Complainant’s representative. 2019005883 2 Complainant explained that the FAD was originally mailed to her old home address, albeit she updated it prior to the FAD being issued. After filing her notice of appeal, Complainant secured another counsel (Attorney 2), who is not connected to Attorney 1. Because the postmark is legible, the controlling date of when Complainant filed her appeal is the postmark date - August 15, 2019. 29 C.F.R. § 1614.604(b). Complainant makes no representation attempting to rebut the presumption that Attorney 1 received the FAD five days after it was sent - in other words, received on June 25, 2019. When a complainant is represented by an attorney, the 30-day time limit to file an appeal starts to run when the attorney receives the FAD. 29 C.F.R. § 1614.402(b). Accordingly, Complainant’s August 15, 2019 appeal is three weeks beyond the 30- day time limit. Assuming Attorney 1 stopped representing Complainant prior to the FAD being sent, and the Agency was notified of this, the time limit for Complainant to file her appeal started to run on July 15, 2020, when she received the FAD. Accordingly, the appeal filing by Complainant on Thursday, August 15, 2019, would still be one day beyond the 30-day time limit. Accordingly, Complainant’s appeal is DISMISSED as untimely filed. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2019005883 3 In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2019005883 4 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, 2021 Date