0120123526
02-26-2013
Vickie L. Jones, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Vickie L. Jones,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123526
Agency No. 2004-0512-2012101829
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 19, 2012, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse Assistant at the Agency's Center (Facility) in Baltimore, Maryland.
Complainant contacted the EEO Counselor regarding her claim of discrimination. When the matter could not be resolved informally, the EEO Counselor mailed via United Parcel Service Complainant's Notice of Right to File a formal complaint (Notice) on April 20, 2012. The record indicates that Complainant received the Notice on April 25, 2012. The Notice stated that Complainant had 15 calendar days from receipt to file her formal complaint.
On May 15, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black) and age (53) when:
1. from January 11, 2012 through April 19, 2012, Complainant was detailed to kitchen duties at the Agency's Facility from the position of Nursing Assistant during the investigation of alleged patient/employee abuse on January 4, 2012; and
2. on April 19, 2012, Complainant received a Memorandum of Proposed Reprimand for conduct unbecoming on January 9, 2012.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for failing to file her formal complaint in a timely manner. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
On appeal, Complainant requested that the Commission remand the matter for further processing and reverse the Agency's dismissal. The record establishes that Complainant received the Notice of right to file on April 25, 2012, but concedes she did not file her formal EEO complaint until May 15, 2012, beyond the 15-day limitation period. While pending before the Agency, Complainant argued that her late filing should be excused because she was not aware of the filing deadline. However, we are not persuaded by her argument. The Notice the Complainant received contained plain language alerting her to the 15-day filing period in bolded and capitalized language. Therefore, we find Complainant has failed to provide sufficient justification to warrant excusing her untimely filing.
Finally, we note on appeal that Complainant raised new claims of discrimination. She indicated that she has tried to contact the Agency's EEO Counselor regarding these new claims, but no one has returned her calls. We find that it is not appropriate for Complainant to raise these new claims on appeal to the Commission for the first time. We put the Agency on notice that Complainant has tried to contact the EEO Counselor regarding the new claims. The Agency should direct its EEO office to contact Complainant to arrange for new EEO counseling.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint.
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
February 26, 2013
__________________
Date
2
0120123526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123526