0120151682
09-04-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151682
Agency No. 200P03392014104714
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 3, 2015, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Assistant at the Agency's VARO facility in Denver, Colorado.
Complainant contacted an EEO counselor on September 3, 2014. Therein she alleged she was subjected to a hostile work environment based on her disability when, between August 14 and September 3, 2014: (1) her own disability case was assigned to her office instead of an external one, and her case still appears on the screen when she logs into the system; (2) the Director (MM) and a security guard escorted Complainant to MM's office, and within five minutes the SWAT team arrived, and MM placed Complainant on administrative leave; (3) a claims assistant informed Complainant that the reason the SWAT team was called was because there was a rumor that someone was going to jump out of a window; (4) the triage coach (SE) told Complainant that she could not find her case in the system and, in essence, called Complainant a liar; (5) SE continued to assign Complainant military sexual trauma and/or post traumatic stress claims, despite MM's previous assurance that she would not be assigned these claims because this type of claim would exasperate Complainant's medical condition; and (6) Complainant's own claim again appeared on her system to include her name and social security number.
When Complainant's concerns could not be resolved during EEO counseling, the Agency sent Complainant the notice of right to file a formal complaint, which she received on December 2, 2014. On December 10, 2014, Complainant submitted a signed withdrawal of her complaint.
On January 15, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of disability when: (7) around September/October 2014, she was denied a reasonable accommodation when she was informed that she had the choice of a position in the mail room as a GS-04, step 10, or she could take a medical retirement; and (8) on October 10, 2014, she constructively resigned her position due to intolerable working conditions.
The Agency dismissed claims 1-6 because Complainant had withdrawn them. The Agency dismissed all of the claims pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that the Agency issued Complainant a Notice of Right to File a formal EEO complaint on November 25, 2014, that correctly informed her of the 15-day filing period. Complainant signed for the Notice, delivered by United Parcel Service, on December 2, 2014.
Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until January 15, 2015, which is well beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. As we are affirming the Agency's dismissal of the entire complaint as untimely filed, it is unnecessary for us to address the Agency's other reasons for the dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 4, 2015
__________________
Date
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