Frederick A.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 13, 2017
0120150432 (E.E.O.C. Dec. 13, 2017)

0120150432

12-13-2017

Frederick A.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Frederick A.,1

Complainant,

v.

Dr. David J. Shulkin,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120150432

Hearing Nos. 541-2012-00033X, 541-2012-00034X

Agency Nos. 200P-0554-2010104743, 200P-0554-2011100964

DISMISSAL OF APPEAL

By Notice of Appeal postmarked November 13, 2014, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's July 28, 2014, final action (FO) concerning his EEO 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons the Commission finds that Complainant's appeal was untimely and it is DISMISSED.

Complainant filed two EEO complaints which were consolidated. Complainant alleged in the first complaint that he was subjected to discrimination and a hostile work environment on the bases of age (55), sex (male), and reprisal when his requests for leave, and overtime were denied. In the second complaint, Complainant alleged that he was subjected to discrimination based on his age, reprisal, sex, race (Black), and disability (physical) when on October 19, 2010, he was not selected for the position of Medical Administrative Specialist.

The record reflects that the Administrative Judge (AJ) issued a decision without a hearing on July 18, 2014, finding that Complainant did not prove that he was subjected to a hostile work environment or discrimination with regard to both claims. The AJ's decision was mailed to Complainant's home address. The Agency issued its FO fully implementing the AJ's decision on July 28, 2014, this decision was also mailed to Complainant's home address.

The FO advised Complainant of his right to appeal the FO to the Commission's Office of Federal Operations (OFO) within 30 days. Further, Complainant was advised that if he filed an appeal with the Commission beyond the above-noted time limit, he would have to provide the Commission with an explanation as to why the appeal should be accepted despite its untimeliness, and that if Complainant did not explain why his timeliness should be excused, the Commission could dismiss the appeal as untimely.

The record reveals that on September 9, 2014, Complainant emailed the EEO office and indicated that he was notified of the decisions via email and that he believed he was denied his due process right to appeal.2 On November 7, 2014, Complainant requested a copy of the AJ's decision. On November 10, 2014, Complainant requested that the FO and certified receipt for the case by forwarded to him. On November 13, 2014, Complainant filed an appeal with OFO.

In the instant case, we find that Complainant's appeal should be dismissed. The record indicates that the AJ's decision and the FO were sent to Complainant via both email and mail in July 2014. In fact, Complainant, in his September 9, 2014, email, acknowledged that he had received the decision via email. Complainant was required to appeal the decision within 30 days of receiving the Agency's FO. 29 C.F.R. � 1614.402(a).

Complainant was put on notice of the 30-day filing requirement in July 2014, and, in September 9, 2014, he acknowledged that he was aware of the decision in his case, but Complainant waited until November before acting. We find that his November 13, 2014, appeal, was well beyond the prescribed 30-day period.

Complainant did not provide an adequate explanation for his untimeliness; therefore, we are not persuaded that the time limitation period should be extended in this case. Complainant presented no evidence that he was not notified of the time limit or that he was not otherwise reasonably aware of the requirement. Likewise, Complainant did not contend he was prevented from timely filing his complaint for reasons beyond his control. Furthermore, Complainant did not allege he reasonably relied on incorrect advice or guidance from any official.

CONCLUSION

Accordingly, Complainant's November 13, 2014, appeal is hereby DISMISSED. See 29 C.F.R. � 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 Complainant's 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

_12/13/17_________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

2 The record indicates that the parties had a disagreement about the method he would receive items in the past. On October 1, 2012, Complainant contacted the Agency and questioned the Agency's practice of sending emails regarding EEO matters. Specifically, Complainant indicated that:

Please be advised that emails are not an effective method in communicating pertaining to the pending EEO cases. I am a disabled service-connected veteran with FMLA status. I returned back to work today. There are weeks when I am not at work to respond to any via emails. To ensure there are no miss-communications per stipulation please respond U.S. postal Service.

In response, the VA staff attorney provided:

We typically do both; I email a copy to yourself and the AJ, and at the same time we mail a copy to your address. Regardless, I will ensure a hard copy of anything filed on behalf of the Agency is mailed to your address as well.

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