0120092986
03-11-2011
Sheri Porter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sheri Porter,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092986
Agency No. 2003-0741-2009100842
DECISION
Complainant filed an appeal with this Commission from the Agency's Notice
of Final Agency Decision dated June 2, 2009 dismissing her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Record on Appeal (ROA)
at 23. Upon review, the Commission finds that Complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to
the untimely filing of the formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Contact Representative at the Agency's Health Administration Center
facility in Denver, Colorado. On April 10, 2009, Complainant filed by
facsimile transmission to the Agency, a formal complaint alleging that
the Agency subjected her to discrimination on the bases of race, sex,
disability, and age when:
Effective October 23, 2008, Complainant was terminated during
probation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a
complaint that fails to comply with the applicable time limits contained
in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends
the time limits in accordance with � 1614.604(c).
In the instant case, the record discloses that Complainant received the
notice of right to file a formal complaint on March 11, 2009. ROA at
87. Although the notice indicated that Complainant had to file a formal
complaint within fifteen calendar days of its receipt, Complainant did
not file her formal complaint until April 10, 2009, which is beyond the
limitation period. Id. at 44. On appeal, Complainant has not offered
adequate justification to warrant an extension of the time limit for
filing the complaint. We find the Agency properly dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Accordingly, the Agency's Final Decision dismissing Complainant's
complaint is AFFIRMED.
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
March 11, 2011
__________________
Date
2
0120092986
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092986