0120091953
08-26-2009
Paula Divel, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Paula Divel,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091953
Agency No. 200H06932009100258
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 12, 2009, 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. Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact.
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of disability (physical) when the agency
denied her light duty assignments as well as authorized absences to
receive care for a worker's compensation injury; and when she was
terminated from her position during her probationary period effective
March 22, 2008.
The record indicates that complainant appealed her termination to the
Merit Systems Protection Board (MSPB) on May 14, 2008. Thereafter,
on August 5, 2008, the MSPB dismissed the matter for lack of
jurisdiction because complainant was serving a probationary period.
Complainant contacted an EEO counselor on the matter on October 20,
2008. In its final decision, the agency appears to imply that the MSPB
decision put complainant on notice that she had 45 days to contact
an EEO counselor. The Commission notes that pursuant to 29 C.F.R. �
1614.302(b)(1) the agency is to notify complainant of the right to
contact an EEO counselor within 45 days of the notice to file an EEO
complaint. There is no indication that the agency did this. Nonetheless,
the regulation goes on to state that the date on which the person filed
her appeal with the MSPB shall be deemed the date of initial contact
with the counselor.
The record discloses that the alleged discriminatory event occurred on
March 22, 2008, but complainant filed her appeal with the MSPB on May 14,
2008, which is considered her date of EEO counselor contact and which is
beyond the forty-five (45) day limitation period. On appeal, complainant
has presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. Complainant
asserts she filed her appeal with the MSPB earlier. However, the record
contains an email to the agency from the MSPB confirming that she filed
her appeal with the Board on May 14, 2008.1 Accordingly, the agency's
final decision dismissing complainant's complaint 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
August 26, 2009
__________________
Date
1 The Commission has no jurisdiction over the manner in which the MSPB
determines a filing date.
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2
0120091953
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091953