0120162259
09-08-2016
Almeda B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Almeda B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162259
Agency No. 2003-0580-2016101606
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 7, 2016, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Medical Supply Technician at the Agency's Michael E. DeBakey Veterans Affairs Medical Center in Houston, Texas.
On March 29, 2016, Complainant filed the instant formal complaint, claiming discrimination on the bases of race, national origin, disability, age, and in reprisal for prior EEO activity.
On June 7, 2016, the Agency issued a final decision dismissing Complainant's formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency found that a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") dated February 5, 2016, was delivered to Complainant's address of record on February 9, 2016. The Notice notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until March 29, 2016, to file her formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
The instant appeal followed. On appeal, Complainant states she was unable to meet the time requirements because of her illness and impairments. Complainant states "my request for 2 sick days within February 26, 2016, does not substantiate my being incapacitated. However, I do suffer daily from impairments that are considered substantially limited major life activities to include digestive, bowel, anxiety and muscular skeletal with frequent episodic occurrences for which I have been diagnosed."
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.
The record discloses that Complainant received the Notice on February 9, 2016. Although the Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file a formal complaint until March 29, 2016, which is beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Complainant argues that she was ill and was diagnosed with certain impairments during the relevant period. However, there are no medical records showing that she could not have filed a formal complaint in a timely manner. We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (October 29, 1992). Merely being absent from work for a period of time and being diagnosed with certain impairments, without more, is insufficient to show one is incapacitated.
The Agency's final decision to dismiss the formal complaint on the grounds of untimely filing is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
September 8, 2016
__________________
Date
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.
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