0520120236
12-07-2012
Neil K. Gupta, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Neil K. Gupta,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120236
Appeal No. 0120112048
Agency No. 200P-0660-2010101205
DECISION TO RECONSIDER
Complainant requested that the Commission reconsider its November 23, 2011 letter, which administratively closed EEOC Appeal No. 0120112048. 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 Notice of Appeal postmarked February 24, 2011, Complainant filed an appeal with this Commission from the January 19, 2011 final Agency decision (FAD) concerning his EEO 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.
On March 19, 2011, Complainant filed a brief in support of the appeal. Among other things, Complainant stated, "I am requesting that VA General Counsel not be given any information pertaining to this brief ... If the EEOC cannot grant my request, I request that I be given the opportunity to withdraw my EEOC appeal ..."
By letter dated November 23, 2011, the Commission administratively closed Complainant's appeal. Specifically, the Commission stated the following: (a) Complainant indicated he did not want the contents of his brief shared with the Agency; (b) Complainant indicated that if the information was required to be shared, he was requesting withdrawal of the appeal; and (c) because copies of briefs are required to be given to opposing parties, it was respecting Complainant's wishes and administratively closing his appeal.
In his request for reconsideration, Complainant argued that the Commission prematurely closed his appeal and did so without his consent. Specifically, Complainant asserted that he never asked to withdraw his appeal and clarified that he merely requested the opportunity to do so. Complainant emphasized that he did not wish to withdraw his appeal.
After a review of Complainant's request for reconsideration, the November 23, 2011 letter, and the entire record, the Commission finds that Complainant's request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. However, in the interests of fairness, the Commission has decided to reconsider its November 23, 2011 letter on its own motion. We note that while his March 19, 2011 brief contained language that could be interpreted as a request to withdraw the appeal, Complainant clarified in his request for reconsideration that he never intended to actually withdraw the appeal. Therefore, the November 23, 2011 letter administratively closing EEOC Appeal No. 0120112048 is VACATED. We now turn to Complainant's appeal.
Upon review, we find that Complainant's February 24, 2011 appeal was untimely filed. Complainant indicated on his Notice of Appeal that he received the FAD on January 24, 2011. A review of the FAD reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file his appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file his appeal no later than February 23, 2011. Complainant has not offered any justification for an extension of the applicable time limit for filing his appeal. Accordingly, Complainant's February 24, 2011 appeal is hereby DISMISSED. See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (revised)
With regard to the portion of our decision pertaining to the untimeliness of Complainant's February 24, 2011 appeal, 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
_12/7/12_________________
Date
2
0520120236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120236