0520120274
11-29-2012
Freda Garrett, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Freda Garrett,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120274
Appeal No. 0120113116
Agency No. 2003-0549-2010101436
DENIAL
On January 23, 2012, Complainant requested reconsideration of the decision in Freda Garrett v. Department of Veterans Affairs, EEOC Appeal No. 0120113116 (Dec. 6, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
By regulation, requests must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely filed if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b). A complainant has the duty to keep the agency and Commission informed of his or her current address. See 29 C.F.R. � 1614.105(b)(1).
We note that the Commission's previous decision included a Certificate of Mailing indicating that, for purposes of timeliness, the Commission would presume that the decision was received within five (5) calendar days of the date on which it was mailed. The Certificate stated that the decision was mailed to Complainant, Complainant's attorney, and the Agency's representative on December 6, 2011. Complainant and her attorney are presumed to have received the previous decision no later than Monday, December 12, 2011. Thirty days from that date was Wednesday, January 11, 2012.
As evidenced by the postmark date, Complainant's attorney mailed the request for reconsideration on January 23, 2012, which was beyond the 30-day time limit set by regulation. Complainant's attorney states that the Commission's previous decision was mailed to her former office and was not received until December 30, 2011.
The Commission has long held that a complainant is deemed to have constructively received documents mailed to his or her last known address when the complainant or the complainant's agent fails to provide notice of an address change. Otterstedt v. U.S. Postal Service, EEOC Appeal No. 01A05235 (Mar. 19, 2002) (complainant constructively received mailings sent to complainant's counsel and complainant); Canizales v. Dep't of Health and Human Servs., EEOC Appeal No. 01990647 (Apr. 26, 2001) (agency did not err in sending final agency decision to last known address of complainant's attorney where attorney did not officially notify agency of change of address). Complainant's attorney does not assert, and the record contains no evidence to indicate, that she informed the Commission of her change of address prior to the issuance of the Commission's previous decision. Therefore, we find that Complainant has failed to provide an adequate justification for waiving the 30-day time limitation period in this case.
For the foregoing reasons, Complainant's request is DENIED. The decision in EEOC Appeal No. 0120113116 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
November 29, 2012
Date
2
0520120274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120274