0120090178
03-06-2009
Juanita A. Leonard, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Juanita A. Leonard,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090178
Agency No. 2001-0521-2008102977
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated September 23, 2008, dismissing her complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In her complaint, as defined by the FAD, complainant alleged
that she was subjected to discrimination based on her disability and
reprisal for prior protected EEO activity when:
1. on or about April 21, 2008, her request for Family and Medical Leave
Act (FMLA) [leave] was denied, and she had to work her regular duty;
2. on or about April 28, 2008, her supervisors made repeated requests
for additional information in support of her FMLA request, which delayed
approval;
3. on or about April 28, 2008, her supervisor discussed her medical
information with fellow employees, indicating that she had been released
to "full-duty status";
4. on or about May 6, 2008, her supervisors disputed the medical
certificate regarding her physical condition;
5. on or about May 6, 2008, and ongoing, complainant was denied light
duty status as instructed by a physician's statement; and
6. on or about May 19, 2008, her supervisor scheduled her to work the
midnight shift.
The FAD dismissed the entire complaint for failure to timely file the
complaint. 29 C.F.R. � 1614.105(d) & .107(a)(2). It reasoned
that complainant received her notice of right to file a complaint on
June 21, 2008, but did not file her complaint until July 16, 2008,
beyond the 15 calendar day time limitation.
The notice of right to file a complaint advised complainant that she must
file her complaint within 15 calendar days of receipt of the notice, and
provided any of three addresses for doing so. The notice advised that
while complainant may contact the EEO counselor with questions about
how to complete the formal complaint form, the 15 day time limitation
would not be extended for this reason. A postal domestic return receipt
signed by someone at complainant's address indicates the above mailing
was received on June 22, 2008.1
On June 24, 2008, complainant sent an e-mail to the EEO counselor
reminding her of her written June 10, 2008, request for the counselor to
change somewhat her characterization of complainant's claims, and asked
for some additional changes. Complainant's e-mail stated that these
changes needed to be made before she filed her complaint, requested
the time limit to file her complaint be stayed, and asked if it could
not be extended, for her to be contacted. The counselor was out of the
office from June 10 through 13, 2008, and from June 23 through 27, 2008.
The counselor did not respond to the e-mail. Complainant suggested
that she delayed filing her EEO complaint because she was waiting for
the counselor and her to agree on the definition of the claims raised
with the counselor.
The agency avers, and complainant does not dispute, that complainant
was represented by a union president, and complainant herself is a union
secretary. Nor does she dispute the agency's contention that she has had
training on the EEO process. The notice of right to file a complaint
was unambiguous, and the agency never informed complainant that the 15
day time limit had been extended. Given all this, we find complainant
was not justified in relying on the counselor's failure to respond to
the June 24, 2008, e-mail as a reason to delay filing her complaint.
29 C.F.R. � 1614.604(c).
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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
March 6, 2009
__________________
Date
1 The individual who signed the domestic return receipt wrote a receipt
date of June 22, 2008. However, the domestic return receipt bore a
return postmark of June 21, 2008, indicating the delivery was actually
made by that day.
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0120090178
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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