01A24848
01-10-2003
Angielene Owens, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Angielene Owens v. Department of Veterans Affairs
01A24848
January 10, 2003
.
Angielene Owens,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24848
Agency No. 200K-0535-2002102516
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on August 27, 2002, dismissing her 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 Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on age, race and gender. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a formal
complaint. The agency framed the claim as follows: the HR Classification
Specialist did not reclassify complainant's position of Automation Clerk
from the GS-4 level to the GS-5 level. As a result, complainant was
not promoted to a GS-5.
In its August 27, 2002 decision, the agency dismissed the complaint on the
ground that it was untimely filed. The agency determined that complainant
was issued a �Notice of Right to File a Complaint� (hereinafter �Notice�)
on May 6, 2002, but did not file her complaint until May 22, 2002, one
day beyond the fifteen-day time limitation. The agency noted that when
asked for an explanation for the untimely filing, complainant contended
that she signed and mailed the complaint by May 20, 2002. She could not
recall whether the complaint was sent via �trip ticket� or inter-office
mail. According to complainant, there was no record of her filling out
a �trip ticket.� She argued that the VA Hines Mailroom Supervisor stated
that a complaint sent without a �trip ticket� would only take one day for
delivery through inter-office mail. The agency found that complainant's
reason, namely her decision to file the complaint through inter-office
mail, was insufficient to justify a waiver of the time limit.
On appeal, complainant argues that she did timely file her complaint
and that she �should not be held accountable for whatever reasons it
did not arrive until the day after.� She contends that she chose to use
inter-office mail �because at the time I was not aware of other options.�
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 review of the record, the Commission finds that the complainant
failed to file her complaint in a timely manner. While complainant
argues that it was timely mailed through inter-office mail, we disagree.
The Notice specifically advised complainant that the complaint would
be deemed timely filed if it was received or postmarked before the
expiration of the 15 calendar day filing period, or in the absence
of a legible postmark, if it was received by mail within 5 calendar
days of the expiration of the filing period. Clearly, complainant
was on notice that the complaint could be filed through the regular
postal mail or hand-delivered. Contrary to complainant's argument,
she is responsible for proceeding with her complaint. See 29 C.F.R. �
1614.605(e). Since complainant has not presented sufficient justification
for extending or tolling the time limitation, we find that the agency's
decision to dismiss the complaint was proper.
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 10, 2003
__________________
Date