Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 1, 2013

0120121651 (E.E.O.C. May. 1, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120121651

Agency No. 200P-0691-2011105024

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated February
6, 2012, 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. For
the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

On January 5, 2012, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination and harassment/sexual harassment on the basis of sex (female) when:

1. On April 21, 2011, Person A, an employee, touched and/or sexually harassed
Complainant.

2. On September 21, 2011, Person A entered the ladies lounge looking for
Complainant.

3. On September 21, 2011, Complainant reported the incident to the VA Police
and Security. Police and Security personnel made rude comments and accused
Complainant of lying.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely filing of the formal complaint. The Agency noted that the Notice of Right to File a
Formal Complaint dated December 14, 2011, was received by Complainant on December 16,
2011. The Agency noted Complainant did not file her formal complaint until January 5, 2012,
which was five days beyond the 15 calendar day time limit.
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The Agency noted that Complainant explained her untimely filing to the case manager on
January 31, 2012, by stating that she did not include the weekends (Saturday and Sunday),
when calculating the 15 days for filing. The Agency noted Complainant acknowledged that she
was aware of the time limit because she remembered the counselor explaining the requirement
and that she also recalled reading about the 15-day time frame in the information she was
provided. The Agency found Complainant failed to provide sufficient cause to waive the filing
period.

On appeal, Complainant states that she missed the date for filing her complaint because of
illness. Specifically, Complainant states that she has been back and forth to the VA Hospital.
She states that her blood pressure went up while at work and caused busted blood vessels in
her eyes. Complainant supplies copies of papers showing she was in the emergency room on
October 25, 2011, for high blood pressure, iritis, ear infection, and urinary tract infection.
Complainant also supplies documentation that she had medical appointments from November
2011, through April 30, 2012, including one appointment on “December 15, 2011 10:45 AM
(15 MINUTES) WLA-OPHTH URGENT.” In addition, Complainant states that she made a
mistake and only counted weekdays instead of fifteen days straight when calculating the time
for filing her complaint.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.106(b) states that a complaint must be filed with fifteen
days of receipt of the Notice of Right to File a Discrimination Complaint. Moreover, section
1614.107(a)(2) states that the agency shall dismiss a complaint that fails to comply with the
applicable time limits contained in section 1614.106.

Upon review, the Commission finds that the Agency’s dismissal of Complainant’s complaint
was proper. The record reveals that the Notice of Right to File was received at Complainant’s
address of record on December 16, 2011. Although the Notice indicated that Complainant had
to file a formal complaint within 15 calendar days of its receipt, Complainant did not file her
formal complaint until January 5, 2012, which is beyond the limitation period.

We note that Complainant claims that she was so medically incapacitated that she was unable
to timely file her formal complaint. Upon review, we note that the documentation supplied
shows that Complainant was seen at the emergency room and released on October 25, 2011,
which predates the relevant time for filing her formal complaint. Moreover, the rest of the
documentation provided does not show that Complainant was so incapacitated during the
relevant time frame so as to prevent her from timely filing her formal complaint. Thus, we
find Complainant has not offered adequate justification to warrant an extension of the time
limit for filing the complaint.
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CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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

(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
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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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

May 1, 2013
Date