Angielene Owens, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 10, 2003
01A24848 (E.E.O.C. Jan. 10, 2003)

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