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