Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 5, 2013

0120131403 (E.E.O.C. Jun. 5, 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
(Veterans Health Administration),
Agency.

Appeal No. 0120131403

Agency No. 2004-0512-2012104649

DECISION

Upon review, the Commission finds that the Agency’s decision dated February 4, 2013,
dismissing Complainant’s complaint due to untimely filing of a formal complaint is proper
pursuant to 29 C.F.R. § 1614.107(a)(2). For the following reasons, we AFFIRM the
Agency’s decision.

BACKGROUND

The record indicates that Complainant contacted an EEO Counselor concerning her complaint.
Unable to resolve the matter informally, the Agency issued a notice of right to file a formal
complaint. Complainant acknowledged that she received the notice on December 13, 2012.1

Complainant filed her complaint alleging discrimination based on disability (physical) and in
reprisal for prior EEO activity when on August 27, 2012, she was forced to resign under
duress from federal service and the position of Staff Psychologist, GS-13. The Agency issued
its final decision dismissing the complaint due to untimely filing of a formal complaint.
Complainant appealed.
ANALYSIS AND FINDINGS

The record indicates that Complainant received the notice to file her complaint at the latest on
December 13, 2012.2

1 The Agency stated that this notice was received by Complainant on December 12, 2012.
Complainant maintained that she filed her complaint by mail on
December 20, 2012, in a timely manner. However, Complainant failed to submit persuasive
2 Complainant designated, for the first time, her legal representative in her complaint.
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evidence to support this assertion that she filed her complaint on December 20, 2012. The
record indicates that Complainant initially filed her complaint (electronically) on January 9,
2013, which was beyond the limitation period. The record clearly indicates and Complainant
acknowledges that she was clearly informed of the 15-day time limit to file her complaint. On
appeal, Complainant has not offered adequate justification to warrant an extension of the time
limit for filing the complaint.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint 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
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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

(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

June 5, 2013
Date