01a44079
11-29-2005
Andrea C. Love, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Andrea C. Love v. Department of Veterans Affairs
01A44079
November 29, 2005
.
Andrea C. Love,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44079
Agency No. 93-2012
DISMISSAL OF APPEAL
By Notice of Appeal postmarked June 1, 2004, complainant filed an appeal
with this Commission. It is unclear exactly from what complainant is
appealing.
The record indicates that on July 23, 1999, the agency issued a final
agency decision (FAD) finding no sexual harassment, but finding that
complainant was retaliated against regarding a reassignment. Complainant
appealed the FAD to the Commission (Appeal No. 01996819). Meanwhile
on January 31, 2000, the agency issued a second FAD (FAD2), finding
complainant was not entitled to compensatory damages and giving
complainant appeal rights to the Commission. Complainant did not appeal
FAD2. On February 14, 2002, the Commission issued its decision on Appeal
No. 01996819, affirming the agency's findings. Complainant did not file
a request for reconsideration on that decision. The compliance matter
with respect to Appeal No. 01996819 was closed on April 17, 2002.
In her appeal of June 1, 2004, complainant appears to state the agency is
not in compliance and appears to want to pursue a claim of compensatory
damages. The Commission notes that to the extent complainant is
appealing the agency's decision on compensatory damages, her appeal is
untimely. See 29 C.F.R. � 1614.403(c). Further, to the extent that she
is alleging non compliance with the Commission's decision, her arguments
appear to go more to dissatisfaction with the relief she was afforded
rather than noncompliance. Complainant alleges that she only learned of
the compliance matter in June 2004.
The Commission does not find complainant's assertions credible. First,
in the agency's first FAD of July 23, 1999, it was noted that there was
difficulty in getting complainant to pick up her mail and that certified
mail was returned, while regular mail was not returned. The address used
therein is the same as that used by complainant in her current appeal.
Further, in FAD2 concerning compensatory damages, the record indicates
that her attorney assisted during the investigation of such. However,
neither complainant nor her attorney submitted information regarding
her compensatory damages claim and the decision noted that complainant
was �uncooperative�. Complainant claims to have never received the
Commission's decision in Appeal No. 01996819, but as noted above,
her address has not changed and well over 2 years have elapsed since
its issuance. As such, the Commission finds that the appeal is untimely
and is dismissed.
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
November 29, 2005
__________________
Date