0120102172
08-19-2010
Wilma Viree, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Wilma Viree,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102172
Agency No. 2OOI05082009104492
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 19, 2010, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (black), disability, reprisal, and harassment when:
1. On April 2, 2009, she was instructed to give a verbal and written statement during the Administrative Board (AIB) without representation.
2. On May 27, 2009, she was subjected to an AIB.
3. On May 28, 2009, her supervisor issued her written counseling.
4. On June 9, 2009, the chairman of AIB, attempted to violate her choice of representation for her testimony on June 10, 2009.
5. On July 29, 2009, management insisted that she provide documentation from her treating physician before the approval of her sick leave requests beginning the week of August 5, 2009.
6. On August 28, 2009, management issued her a proposed reprimand.
7. On September 4, 2009, management questioned her about her whereabouts and later warned her via email not to leave her work area without notification.
8. On September 15, 2009, she was issued a reprimand.
9. On September 17, 2009, management marked her AWOL.
10. On September 28, 2009, the Associate director for Nursing/Patient Care Services issued her a proposed removal.
The Agency dismissed the complaint under 29 C.F.R. � 1614.107(a)(2) because it was untimely filed. The Agency determined that Complainant received her notice of the right to file (NRF) a discrimination complaint on December 5, 2009, but did not file the complaint until December 29 2009, beyond the fifteen day time limit. The record reflects that the NRF informed Complainant of the 15 day time limitation and provided the address for filing the formal complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the time limit for filing her complaint should be waived because she was waiting for accurate and exact dates for her discrimination claims from the Office of Resolution Management (ORM). Complainant further indicates that she filed her complaint as soon as it became apparent that ORM was not going to send her accurate dates pertaining to her claims.
ANAYLSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) provide that a formal complaint must be filed within 15 days of receipt of the notice of right to file. However, under appropriate circumstances, this time period is subject to waiver, estoppel and equitable tolling. See 29 C.F.R. � 1614.604(c). Here, we find that Complainant has failed to set forth sufficient evidence or argument to justify tolling the time limit in this matter. We note that Complainant does not contend that she was misled about the 15-day filing requirement, or that she was otherwise confused about its applicability. She states only that she did not file the complaint within the 15-day period, because she was waiting for the exact dates for her claims. However, in light of Complainant's admitted knowledge and understanding of this requirement, we do not find that her stated reason is sufficient to waive the time period. 1
CONCLUSION
Accordingly, we find that the Agency properly DISMISSED the instant complaint, and we AFFIRM the FAD.
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
___8/19/10_______________
Date
1 In reaching the above decision, we find that the information sought by Complainant, although important, was not essential in order to file her complaint. Complainant could have provided general information regarding the dates, while waiting to receive more specific information from OPM. During the Agency's investigation, she could then have provided the specific information.
??
??
??
??
2
0120102172
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102172