Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120123091 (E.E.O.C. Feb. 11, 2015)

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
(Veterans Health Administration),
Agency.

Appeal No. 0120123091

Agency No. 200406592012101252

DECISION
Complainant filed a timely appeal with this Commission from the Agency's Final Decision
dated June 25, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. Upon review, the Commission finds that Complainant's complaint
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of
the formal complaint.

At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse at the
Agency’s Veterans Administration Medical Center facility in Salisbury, North Carolina. On
April 4, 2012, Complainant filed a complaint alleging that the Agency subjected her to
discrimination on the bases of race (African-American) and age (over 40 years old) when:

1. On November 21, 2011, Complainant received a notice of non-selection for the
position of Nurse Manager at the Winston-Salem, North Carolina Outpatient
Clinic

2. On January 12, 2012, Complainant received a Memorandum of Admonishment
(proposed November 3, 2011) for unprofessional conduct.

On appeal, Complainant states that she was under a lot of pressure during the time her
complaint was due to be filed.

0120123091

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The record discloses that Complainant received the notice of right to file a formal complaint on
April 2, 2012. 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
April 18, 2012, which is one day beyond the limitation period. 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).

0120123091

3
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

(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

Date
February 11, 2015