Pamela Velardi, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 17, 2007
0120070001 (E.E.O.C. Sep. 17, 2007)

0120070001

09-17-2007

Pamela Velardi, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Pamela Velardi,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120070001

Agency No. 200P06642005101125

DISMISSAL OF APPEAL

By Notice of Appeal postmarked September 27, 2006, complainant filed an

appeal with this Commission from the agency's final action1 concerning

her EEO 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.

The attorney who filed the instant appeal2 and supporting brief on behalf

of complainant states that he was never sent a copy of the AJ's February

9, 2006 Decision Without A Hearing (nor a copy of the agency's Motion for

a Decision Without a Hearing). As proof, the attorney attaches to the

appeal a copy of a letter dated March 14, 2006, that he wrote to the AJ,

in which he asks the AJ to reconsider his decision and hold a hearing

in this case. In such letter, the attorney indicates that his client

(complainant) recently forwarded him a copy of the AJ's Decision, and

this was the first time he had seen it. Giving complainant the benefit

of the doubt, we will assume that complainant's attorney received the

AJ's decision on March 14, 2006 and that the AJ decision became the final

agency action on April 24, 2006. See 29 C.F.R. � 1614.109(i). Thus,

in order to be considered timely, complainant would have had to have

filed her appeal within 30 days, namely, no later than May 24, 2006.

Complainant has not offered adequate justification for an extension

of the applicable time limit for filing her appeal. Accordingly,

complainant's September 27, 2006 appeal is hereby dismissed. See 29

C.F.R. � 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

September 17, 2007

__________________

Date

1 The agency indicates that it did not issue a final order within

40 days after receipt of the Administrative Judge's (AJ) February 9,

2006 decision. Therefore, the AJ's decision became the final action of

the agency. See 29 C.F.R. � 1614.109(i).

2 The attorney states that all parties and the AJ were aware that he

was counsel-of-record, while the agency denies that he ever formally

entered his appearance on behalf of complainant. The record indicates

that at some point complainant had another representative, to whom the

AJ sent a copy of his February 9, 2006 decision.

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0120070001

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036