05A30465_r
09-23-2004
John D. Sotherden, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
John D. Sotherden v. Department of Veterans Affairs
05A30465
September 23, 2004
.
John D. Sotherden,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A30465
Appeal No. 01A23428
Agency No. 200H-0670-2002100525
DECISION ON REQUEST FOR RECONSIDERATION
On February 13, 2003, Department of Veterans Affairs (agency) timely
initiated a request to the Equal Employment Opportunity Commission (the
Commission or EEOC) to reconsider the decision in John D. Sotherden
v. Department of Veterans Affairs, EEOC Appeal No. 01A23428 (January
9, 2003). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. � 1614.405(b). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or more
of the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, the agency's request
is granted.
Complainant filed his formal EEO complaint alleging discrimination on
the basis of sex when he was subjected to a hostile work environment.
The agency dismissed the complaint, finding that complainant failed
to file it in a timely manner. The agency indicated that complainant
received the Notice of Right to File a formal complaint (Notice) on
December 18, 2001. The agency noted that complainant filed his formal
complaint on January 8, 2002. The agency concluded that complainant
untimely filed his formal complaint.
The previous decision found that complainant was represented by an
attorney during the time in which the Notice was issued, as evidenced
by the EEO Counselor's report listing an attorney representative.
The previous decision noted that pursuant to 29 C.F.R. � 1614.605(d),
when a complainant is represented by an attorney, �time frames for receipt
of materials shall be computed from the time of receipt by the attorney.�
The previous decision found that the agency failed to support its decision
with evidence as to when complainant's attorney received the Notice.
Accordingly, the previous decision reversed the agency's dismissal.
On request for reconsideration, the agency claims that complainant
was not represented by an attorney at the time the Notice was issued
and argues that it properly served the Notice solely on complainant.
The agency notes that complainant received the Notice on December 18,
2001, and states that his January 8, 2002 formal complaint was untimely
filed.<1> In support of its position, the agency notes that the EEO
Counselor's report, containing the name of an attorney representative is
dated February 28, 2002, and was written after (emphasis in original)
the mailing of the Notice on December 13, 2001, and after the agency
received complainant's formal complaint on January 28, 2002. The agency
also cites the November 5, 2001 Notice of Rights and Responsibilities
provided to complaint, in which complainant checked off the box that
he does not want a representative at this time. The agency notes that
complainant signed this document on December 11, 2001, two days before the
agency mailed complainant the Notice of Right to File a formal complaint.
The agency claims that the earliest it could be considered on notice that
complainant might by represented by counsel was when it received his
formal complaint. Complainant does not claim that he was represented
by an attorney prior to filing the complaint.
Upon review of the record, we conclude that the previous decision was
clearly erroneous. The previous decision erred in finding that complainant
was represented by an attorney during the time in which the Notice of
Right to File was issued. Since complainant was not represented by
an attorney, the fifteen-day period for complainant to file his formal
complaint began to run on December 18, 2001, when he received the Notice.
Therefore, for the complaint to have been timely filed, complainant would
have had to file it by January 2, 2002. See 29 C.F.R. �� 1614.106(b),
1614.604(d). The record reveals that complainant did not file his
complaint until January 8, 2002, which was beyond the applicable
limitations period. Accordingly, the Commission affirms the agency's
dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the agency's request meets the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to grant the agency's request.
The decision of the Commission in Appeal No. 01A23428 is reversed.
The agency's decision dismissing complainant's complaint is affirmed.
There is no further right of administrative appeal on the decision of
the Commission on a Request to Reconsider.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 23, 2004
__________________
Date
1In its decision the agency states that
complainant's formal complaint was filed January 8, 2002. In its request
for reconsideration, the agency states that complainant's formal complaint
was filed February 1, 2002. The record reveals that complainant mailed
his complaint to the agency's headquarters in Washington, D.C. in an
envelope postmarked January 8, 2002. Thereafter headquarters faxed
the formal complaint to the agency's local office on February 1, 2002.
The Commission considers the formal complaint filed on January 8, 2002.