Joanne Iyamu, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 9, 2005
01a50849 (E.E.O.C. Mar. 9, 2005)

01a50849

03-09-2005

Joanne Iyamu, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Joanne Iyamu v. Department of Veterans Affairs

01A50849

March 9, 2005

.

Joanne Iyamu,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A50849

Agency No. 200I-0508-2002103422

Hearing No. 110-2003-08433X-PD

DISMISSAL OF APPEAL

The record indicates that complainant filed her complaint, dated July

24, 2002, alleging discrimination based on race and in reprisal for

prior EEO activity when she was issued a notice of proposed removal in

July 2002, which was later reduced to a suspension. After completion

of the investigation of the complaint, complainant requested a hearing

before an EEOC Administrative Judge (AJ). After the hearing, the AJ

issued a decision, dated September 24, 2003, finding no discrimination.

On October 9, 2003, the agency issued its decision fully implementing

the AJ's decision. Therein, the agency explicitly informed complainant

of the time limits on her right to appeal to the Commission. Thereafter,

complainant filed an appeal to the Merit Systems Protection Board (MSPB)

on June 11, 2004. Meanwhile, it appears that complainant filed a motion

to set aside judgement to the AJ and the AJ denied the motion. On July

15, 2004, complainant files the instant appeal.

EEOC Regulation 29 C.F.R. � 1614.402 provides that appeals to the

Commission must be filed within 30 calendar days after a complainant

receives notice of the agency's decision. On appeal, complainant contends

that she was not informed of her appeal right to the MSPB by the agency

concerning her mixed case complaint. There is no evidence in the record

that complainant raised her contentions anytime during the pendency

of her complaint within the agency or to the AJ during the hearing.

Furthermore, complainant did not raise the same in a timely manner in

her appeal to the Commission. The record indicates that complainant's

then representative received the agency's decision on October 20, 2003.

In a letter dated January 11, 2005, complainant admits that the time

limit to file her appeal had already run. Complainant, however, argues

that since she timely filed an appeal to the MSPB, and since she timely

appealed from the AJ's denial of a motion to set aside judgement, the

instant appeal was timely. After a review of the record, the Commission

finds that complainant fails to provide adequate justification to invoke

waiver or equitable tolling for filing the appeal. Thus, complainant's

filing of appeal on July 15, 2004, from the agency's October 9, 2003

decision was untimely. Accordingly, the appeal is DISMISSED as untimely

pursuant to � 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

March 9, 2005

__________________

Date