01991653
01-10-2000
Anthony J. Shaw, )
Complainant, )
)
v. ) Appeal No. 01991653
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
On December 18, 1998, complainant filed a timely appeal of a final agency
decision, which was dated December 2, 1998, dismissing his complaint
due to untimely EEO Counselor contact.<1>
In its final decision, the agency identified the claim of complainant's
December 30, 1997 complaint as whether complainant was discriminated
against based on race/national origin (American Indian) when on October
22, 1997, while he was inquiring about his leave status, a Human
Resources Clerk informed him that an EEO Specialist told the Clerk that
�[complainant] came into [the Specialist's] office like a wild Indian
and [the EEO Specialist] thought that [complainant] was going to get
his tomahawk out.� The agency stated that complainant's EEO contact on
December 22, 1997, was beyond the requisite time limit.
The record contains a letter dated December 20, 1997, wherein complainant
stated that he knew of the 45-day time limit to contact an EEO Counselor,
but due to his medical and psychiatric problems, he was not able
to do so. In support of his contentions, complainant submitted his
doctor's statement dated October 24, 1997, wherein the doctor stated that
complainant neglected to get �official approval� for his visit with a
physician on October 21, 1997, which was the direct result of the stress
from a death in his family (sister). Specifically, the doctor indicated
that complainant was suffering �unreliable and unpredictable memory loss
(short term, immediate) and concentration.�
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Upon review, we find that the alleged incident occurred on October 22,
1997, but complainant did not contact an EEO Counselor until December 22,
1997, which was beyond the 45-day time limit set by the regulations.
Complainant, submitting his doctor's statement, contended that he
was unable to contact an EEO Counselor within the time limit due to
his medical and psychiatric conditions at the relevant time period.
In Weinberger v. Department of the Army, EEOC Request No. 05920040
(February 21, 1992), the Commission held that �when a complainant
claims that a physical condition prevented him/her from meeting a
particular deadline, the complainant must be so incapacitated by the
condition as to render him/her unable to make a timely filing.� The
same is true regarding claims of incapacity related to psychiatric or
psychological conditions. See Crear v. United States Postal Service,
EEOC Request No. 05920700 (October 29, 1992). The Commission further
has held that evidence that an employee is under a physician's care is
not dispositive of the issue of whether the employee is incapacitated.
Hemphill v. Department of Defense, EEOC Request No. 05930342 (September
17, 1993). In the present case, complainant fails to show that he was so
physically or mentally incapacitated as to be unable to make timely EEO
Counselor contact. Although complainant claimed that he forgot to get
approval to visit a doctor's office due to the stress on one occasion,
this does not establish that he was incapacitated. Furthermore, the
record clearly indicates that he reported to work and performed his
duties during the relevant time period. On appeal, complainant fails to
present adequate justification to warrant an extension of the applicable
time limit for contacting an EEO Counselor. Accordingly, the agency's
final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
January 10, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.