0120123577
05-07-2013
Julie Ann Kohlhepp, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Julie Ann Kohlhepp,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123577
Hearing No. 443-09-00185X
Agency No. 200J-0695-2009-100888
DISMISSAL OF APPEAL
On June 20, 2012, Complainant filed an appeal from a July 12, 2011 final order by the Agency. The Agency's final order fully adopted the decision of an EEOC Administrative Judge, who found that Complainant did not establish that the Agency had discriminated against her on the basis of age when it failed to upgrade her position one grade level after assigning her additional duties.
Under EEOC regulation 29 C.F.R � 1614.402(a), a complainant must file an appeal within 30 days of receipt of the final action by the agency. Here, Complainant filed her appeal nearly a year after the Agency issued its final order.
On appeal, a local union president explained, "We were provided the incorrect address to send the statements to as you can see on the enclosed envelope, and we are now forwarding these to you for your consideration."
Upon review, we find that the Agency's final order provided Complainant with the wrong address, the Commission's former address. But this alone is not an adequate justification for extending the filing period beyond 30 days.
An illustrative example is the case of Hearns v. Dep't of Army, EEOC Appeal No. 01893621 (Jan. 5, 1990). In Hearns, the complainant explained that her appeal had been delayed because she first attempted to use the Commission address provided by the agency, which was the Commission's former address. Only through her own research, claimed the complainant, was she able to find the Commission's new address. The Commission in Hearns determined, however, that the complainant did not provide evidence indicating that the filing of her appeal had originally been timely, but delayed because of an incorrect address. It was noted that the envelope had the current Commission address. Therefore, the Commission in Hearns concluded that the complainant had failed to submit an adequate justification for extending the filing period.
Like the complainant in Hearns, Complainant in this case did not provide sufficient evidence to show that she attempted to mail her appeal to the Commission's former address within 30 days of receiving the Agency's final order. The only documentary evidence we have from Complainant is the envelope in which her current appeal was sent, which was postmarked on June 20, 2012 and specified the Commission's correct mailing address. As we did in Hearns, we conclude here that Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal.
CONCLUSION
Accordingly, Complainant's June 20, 2012 appeal is untimely and hereby DISMISSED. See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
__5/7/13________________
Date
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0120123577
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123577