0120082369
08-05-2008
Alicia V. Guyton, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Alicia V. Guyton,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082369
Agency No. 200406882008100724
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision (FAD) dated April 4, 2008, 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.
In her formal complaint, complainant alleged that she was subjected
to harassment and a hostile work environment by her supervisor (S1)
on the bases of national origin (Native American) and sex (female) when
S1 accused her of: (1) maintaining files and other work items that S1
needed to perform his duties; (2) not informing S1 about various duties
that required follow-up; and (3) "dropping the ball," which resulted in
S1 performing complainant's duties.
On April 4, 2008, the agency issued a decision dismissing the complaint
for untimely filing and also for failure to state a claim. Specifically,
the agency found that the January 24, 2008 filing date of the formal
complaint was 29 days after the receipt of the Notice of Right to File,
exceeding the 15-day period allowed. In addition, the agency found
that complainant failed to show that she was an aggrieved employee and
therefore failed to state a claim under 29 C.F.R. � 1614.103.
Complainant contends that her complaint was timely because her vacation
absence prevented her from receiving the Notice of Right to File from the
agency until January 10, 2008. The record indicates that the agency sent
complainant the notice via Federal Express (FedEx) and regular U.S. mail
(USPS) on December 20, 2007. Review of the FedEx tracking record shows
delivery was attempted four times from December 21, 2007 until December
31, 2007, when the package was returned to the agency. The notice sent
via USPS was not returned. Because the USPS notice was not returned, and
allowing for a five-day presumption of delivery, the agency presumed the
delivery date was December 26, 2007. The record reflects that the agency
asked complainant to provide an explanation for filing her complaint after
January 10, 2008 (the 15th and final day to file her formal complaint
under the presumed December 26, 2007 delivery date.) On January 28, 2007,
complainant submitted a letter stating that her formal complaint was "sent
in past the 15 days because of several obstacles presenting themselves."
In the letter complainant noted that she left her home on December 21,
2007 for vacation and did not return until the weekend of January 5, 2007.
Complainant stated that her "neighbor had the regular mail packet and gave
it to me, as the mail carrier left it in my door, on January 6, 2008."
By her own admission in the January 28, 2007 letter, complaint
acknowledged that she received the notice to file on January 6, 2008
from her neighbor. 29 C.F.R. � 1614.106(b) states that "a complaint must
be filed within 15 days of receipt of the notice." If, for the sake of
argument, the Commission deems January 6, 2008 as the date of receipt,
then Monday, January 21, 2008 was the last day complainant's complaint
would have been timely. Complainant did not file her complaint with
the agency until January 24, 2008. therefore, even given the benefit
of the latest possible receipt date, complainant's complaint is still
untimely. Because we affirm the agency's dismissal for the reason stated
herein, we find it unnecessary to address the alternative ground for
dismissal, failure to state a claim.
The agency's decision to dismiss the complaint on the grounds that it
was untimely filed was proper and is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 5, 2008
Date
1 The Commission notes that complainant provided a name and address
for a non-attorney representative, but did not include the zip code.
According to the U.S. Postal Service website (www.usps.gov), consulted to
determine the zip code, the street address provided by complainant for
her non-attorney representative does not exist in the identified city.
The Commission therefore is unable to serve a copy of the instant decision
upon complainant's non-attorney representative.
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0120082369
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082369