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

Equal Employment Opportunity Commission

May 15, 2013

0120120603 (E.E.O.C. May. 15, 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. 0120120603

Hearing No. 420-2011-00071X

Agency No. 2003-0586-2010104165

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission from the Agency’s final order, dated
October 6, 2011, concerning his complaint of unlawful employment discrimination. In his
complaint, Complainant alleged discrimination based on age (over 40) and sex (male) when he
was suspended for 7 days for failure to adhere to established procedures of the Agency’s police
firearm policy. EEOC Regulation 29 C.F.R. §1614.402 provides that appeals to the
Commission must be filed within 30 calendar days after complainants receive notice of the
Agency’s decision. The regulation further provides that a document shall be deemed timely if
it is received or postmarked before the expiration of the applicable filing period, or, in the
absence of a legible postmark, if it is received by mail within five days of the expiration of the
applicable filing period. 29 C.F.R. § 1614.604(b).

On appeal, Complainant acknowledges that he received the Agency’s final order on October 9,
2011. Complainant’s appeal, which did not have a legible postmark, was received by the
Commission through the mail on November 17, 2011, which was beyond the 30-day time
limit, including the five-day extension, described above. The record reveals that the Agency’s
final order explicitly informed Complainant of the time limits on his right to appeal. On
appeal, Complainant contends that he filed his appeal in an untimely manner because he
misplaced the Agency’s final order. We find Complainant’s contentions do not constitute
adequate justification to invoke waiver or equitable tolling for filing the appeal.

Accordingly, the appeal is DISMISSED as untimely pursuant to 29 C.F.R. § 1614.403(c).
0120120603

2

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
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.

0120120603

3
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 15, 2013
Date