Nigel S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionOct 2, 20202020003008 (E.E.O.C. Oct. 2, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nigel S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003008 Agency No. 200J-0005-2019103768 DISMISSAL OF APPEAL On April 5, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 2, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission DISMISSES the appeal as untimely. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-2210-11, at the Edward Hines Jr. Veterans Administration Hospital in Hines, Illinois. On July 3, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and reprisal (prior EEO activity) when: 1. Since March 3, 2019 and continuing, management has limited communication with him, and verbally dismissed his complaints; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020003008 2 2. On April 25, 2019, he was issued a mid-year performance rating of “Needs Improvement”; 3. On May 29, 2019, a new lock was placed on his door; 4. On May 31, 2019, he discovered that his flash drive was stolen; 5. On April 25, 2019, he received a written counseling; and 6. On April 29, 2019, he received a written reprimand. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or a final decision by the Agency. Complainant requested a final decision. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). On January 2, 2020, the Agency issued a final decision on the complaint, and sent it via First Class mail to Complainant’s address of record. Therein, the Agency concluded that Complainant failed to show that the Agency’s articulated reasons were pretext for unlawful discrimination. Complainant subsequently filed this instant appeal on April 5, 2020. CONTENTIONS ON APPEAL Complainant’s contentions on appeal relate to his workers’ compensation claims. He states that he would like to file a civil lawsuit against the Agency. The Agency asks that the Commission dismiss the instant appeal. ANALYSIS AND FINDINGS Appeals to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency's final action, pursuant to 29 C.F.R. § 1614.402(a). Our regulations further provide that a document is deemed timely if it is delivered in person 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. On appeal, the Agency asserts that it issued the final decision and mailed it to Complainant on January 2, 2020, via First Class mail. The Agency maintains that the final decision properly informed Complainant of the time limit for filing his appeal to the Commission and the consequences for an untimely appeal. The Agency notes that the final decision included a certificate of mailing, which clearly stated that the Agency would presume that Complainant received the final decision within five days after the date the final decision was mailed. The Agency argues that because Complainant did not file his appeal until April 5, 2020, his appeal should be deemed untimely and dismissed. 2020003008 3 Upon review of the record, we find that the Agency mailed its final decision on January 2, 2020. Based on the certificate of mailing, we presume that Complainant received the final decision on February 6, 2020. Complainant did not challenge the presumed date of receipt of the final decision. Because Complainant filed his appeal on April 5, 2020, more than thirty calendar days after he received the Agency’s final decision, we find his appeal to be untimely. CONCLUSION Accordingly, the appeal is DISMISSED on the grounds of untimely filing of the appeal STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020003008 4 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 2, 2020 Date Copy with citationCopy as parenthetical citation