[Redacted], Denis M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionMay 20, 2021Appeal No. 2019003981 (E.E.O.C. May. 20, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Denis M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2019003981 Hearing Nos. 550-2018-00088X; 550-2017-00267X Agency Nos. 200P-0640-2017102167; 200P-0640-201603695 DISMISSAL OF APPEAL On June 3, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the November 28, 2018, final order 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission DISMISSES the appeal as untimely. During the relevant period, Complainant worked as a Laborer, WG-3502-03/02, at the Engineering Service of the Palo Alto Healthcare System in Palo Alto, California. On July 19, 2016, Complainant filed a formal EEO complaint raising numerous claims of discrimination on the bases of race (White), disability (mental), and reprisal for prior protected EEO activity. Following an EEO investigation, Complainant requested an EEOC hearing into the matter. On July 23, 2018, the Agency filed a motion for a decision without a hearing, which the assigned EEOC Administrative Judge (AJ) granted on November 23, 2018. The decision concluded that Complainant failed to prove his allegations of discrimination. 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. 2019003981 2 On November 28, 2018, the Agency issued a final order fully implementing the AJ’s decision. In implementing the decision, the Agency informed Complainant that he had thirty (30) calendar days after receipt of its final order to file his appeal with the Commission. The Agency provided Complainant the correct mailing address for filing his appeal. Complainant indicated that he received the final order on November 28, 2018. See Complainant’s Notice of Appeal. Therefore, in order to be considered timely, Complainant had to file his appeal no later than Friday, December 28, 2018. The Commission, however, did not receive Complainant’s appeal until June 3, 2019, when the Agency forwarded Complainant’s appeal to the Commission. On appeal, Complainant states that he mailed a hard copy of his appeal to the Commission’s Office of Federal Operations (OFO) on December 26, 2018, and also emailed a copy to the Agency representative around the same time. Complainant provides no evidence to support his statement. Complainant asserts that he filed a civil action after he learned that OFO had not received his appeal.2 The Agency disputes Complainant’s contention that he mailed his appeal to OFO. In this regard, the Agency maintains that Complainant never mailed his appeal to OFO and that the record shows that Complainant only sent his appeal to the AJ and the Agency representative on December 26, 2018. The Agency emphasizes that OFO only received Complainant’s appeal when the Agency forwarded the appeal form to OFO on June 3, 2019. The Agency further emphasizes that Complainant was aware that OFO had not received his appeal but did not resend his appeal to OFO. Having reviewed the record, we find Complainant’s appeal to be untimely. We agree with the Agency that Complainant has provided no evidence of record to show that he filed an appeal with OFO. Indeed, we note that the only appeal contained in the case file is the one that the Agency forwarded to OFO on June 3, 2019. We have no record of an appeal filed to OFO by Complainant dated December 2018, and Complainant has not provided us with any such evidence. While we also acknowledge that Complainant emailed his appeal form to the AJ and the Agency representative within the 30-day appeal period, we note that the Commission has long held that, where proper appeal rights have been given, an appeal is untimely filed where the appeal is mailed to the wrong office, even if it would have been timely filed if mailed directly to the Commission. See Henry v. Dep’t of Veterans Affairs, EEOC Request No. 05901116 (Nov. 30, 1990); see also Joey B. v. Dep’t of the Army, EEOC Appeal No. 2019005140 (Dec. 18, 2019), req. for recons. den. Request No. 2020002105 (Sept. 10, 2020) (citing Pacheco v. U.S. Postal Serv., EEOC Request No. 05930700 (Sept. 10, 1993) (appeal untimely when sent to wrong address despite receipt of proper instructions)); Meggitt v. U.S. Postal Serv., EEOC Appeal No. 01A40408 (Feb. 3, 2004) (above principle applied to a formal complaint that was untimely filed). We note that the Commission has applied this principle even where a complainant filed an appeal/hearing request to the wrong Commission office. See Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120133129 (Feb. 12, 2015) (dismissing appeal as untimely where Complainant erroneously filed a notice of appeal with the EEOC AJ first); Johnese v. U.S. Postal 2 Complainant withdrew his civil action. 2019003981 3 Serv., EEOC Appeal No. 0120121815 (Aug. 17, 2012) (affirming AJ’s dismissal of complainant’s hearing request because complainant sent his hearing request to OFO, rather than the applicable EEOC District Office), req. for recons. den. EEOC Req. No. 0520130174 (May 23, 2013). We find that Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal. CONCLUSION Accordingly, Complainant’s appeal is hereby dismissed. See 29 C.F.R. § 1614.403(c). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. In the absence of a legible postmark, a 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. 2019003981 4 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. 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 May 20, 2021 Date Copy with citationCopy as parenthetical citation