0120111989
09-07-2012
Nicholas G. Neu, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Nicholas G. Neu,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111989
Hearing No. 450-2009-00384X
Agency No. 2003-0549-2009100602
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the Agency's final order, dated January 6, 2011, concerning his complaint of unlawful employment discrimination. In his complaint, Complainant alleged discrimination based on disability and in reprisal for prior EEO activity when on November 6, 2008, he was issued a proposed 14-day suspension concerning his failure to follow supervisory instructions and the proposed suspension was sustained on January 13, 2009; and on June 1, 2009, management placed him in an authorized absence status concerning his proposed removal from federal service. EEOC Regulation 29 C.F.R. �1614.402 provides that appeals to the Commission must be filed within 30 calendar days after complainants receive notice of the Agency's decision.
Complainant received the Agency's final order on January 10, 2011. The appeal was filed on February 23, 2011, which was beyond the thirty (30) day time limit set by the regulations. The record reveals that the Agency's decision explicitly informed Complainant of the time limits on his right to appeal. On appeal, Complainant's non-attorney representative indicates that she timely filed the appeal after she received the Agency's final order on February 10, 2011. However, we note that under the regulations, the time frame for filing an appeal is computed from the time when Complainant received the Agency's final order and not when his non-attorney received the same. 29 C.F.R. � 1614.605(d). Based on the foregoing, we find that Complainant fails to provide adequate justification to invoke waiver or equitable tolling for filing the appeal. Accordingly, the appeal is DISMISSED as untimely pursuant to 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
9/7/12
__________________
Date
2
0120111989
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120111989