Carolyn Marsh, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency

Equal Employment Opportunity CommissionJan 8, 1999
01982310 (E.E.O.C. Jan. 8, 1999)

01982310

01-08-1999

Carolyn Marsh, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency


Carolyn Marsh v. Department of the Army

01982310

January 8, 1999

Carolyn Marsh, )

Appellant, ) Appeal No. 01982310

v. ) Agency No. AVKCFO9606G0260

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency )

DECISION

Appellant filed this appeal the final agency decision ("FAD") concerning

her complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. Section 621 et seq.

On April 27, 1995, appellant, a General Attorney, GS-13, filed a formal

EEO complaint alleging that she was discriminated against based on

her sex, race/national origin (African American) and age (48) when

the agency allegedly failed: to promote her to the GS-14 level; to

recognize her qualifications or properly compensate her; and to accord

her the appropriate seniority, particularly regarding her supervisory

authority, work location and work equipment. Appellant also alleged

that the agency attempted to harass her, interfered with her work, and

otherwise created a hostile work environment. In a FAD dated July 13,

1995, the agency dismissed the complaint for failure to cooperate on

the basis that appellant had not responded adequately to its request for

additional information. See 29 C.F.R. �1614.107(g). Appellant timely

appealed and, in September 1995, submitted a brief. In our decision,

the Commission found that there was sufficient information in the

record to allow for an adjudication of the complaint. Accordingly,

the Commission remanded the matter for further processing. See EEOC

Appeal No. 01955845 (May 2, 1996).

Thereafter, the agency investigated the complaint. By letter dated May

19, 1997, the agency provided appellant with a copy of the Report of

Investigation ("ROI") and notified her of the right to request a hearing

before an EEOC Administrative Judge ("AJ"). The record establishes that

a person, elsewhere described by appellant's attorney as the friend

with whom appellant lives, signed the certified mail receipt for this

notification on July 22, 1997.

Having received no response from appellant, the agency issued its instant

FAD on November 6, 1997. The record contains a certified mail receipt,

which was signed for on November 21, 1997, by the same person who signed

for the delivery of the ROI. In its FAD, the agency found that appellant

failed to establish that the agency's articulated reasons for taking

the actions in question were a pretext for discrimination.

On December 23, 1997, appellant herself mailed a handwritten notice

of appeal to this Commission which stated that she was appealing

the FAD "received by me today." The return mailing address given by

appellant is the same address to which the FAD and the ROI were sent.

In its comments on this appeal, the agency points to the certified

mail receipt and contends that appellant "made no attempt to explain

the discrepancy between the date of delivery on the return receipt and

the date she entered on the notice of appeal." Accordingly, the agency

argues that the Commission should dismiss the appeal on the basis that

it was not filed within 30 days of receipt of the FAD, as prescribed by

29 C.F.R. �1614.402. The agency's transmittal letter indicates that a

copy of the agency's argument was served on appellant.

By letter dated January 22, 1998, an attorney filed a brief on appellant's

behalf which asserts that appellant incurred an on-the-job head injury

on January 23, 1995. The brief asserts that as a result of the injury,

appellant suffered a concussion, post concussion syndrome, and various

complications; that her condition has deteriorated since that time,

resulting in cognitive difficulties, difficulty in concentration and

depression; and that appellant is now taking numerous psychotropic drugs.

The brief notes that appellant is living with a friend, but states that

her mail is sent to a Post Office box "and has rarely been picked up

until recently when [she] received the [FAD]." The brief asserts that

appellant had forgotten her EEO complaint due to her mental condition

until she received the FAD "in approximately late November of 1997"

and that she then "took timely action to file the appeal." Because of

appellant's mental condition, the brief argues that she was incapable

of responding to the notice regarding her right to request a hearing.

Accordingly, the brief requests that the Commission remand this matter

to the agency in order to allow appellant to request a hearing before

an EEOC AJ. The brief asserts that "[n]umerous documents depicting

[appellant's] medical condition were submitted to the [agency] in support

of her appeal [and that she] will provide additional documentation

of this condition, but requests additional time to do so." There is

no indication that a copy of this argument was served on the agency.

The Commission's records do not reflect that any additional information

was filed regarding appellant or her medical condition.

The Commission notes that, pursuant to the provisions of 29

C.F.R. �1614.402, an appeal must be filed within 30 days of the receipt of

the FAD. The Commission finds no reason not to attribute receipt of the

FAD to appellant on November 21, 1997, the day the friend with whom she

lives signed the certified mail receipt for the FAD. Like the service

of a summons and a complaint under Rule 4 of the Federal Rules of Civil

Procedure, Commission Regulations are satisfied if documents are accepted

and signed for by a "person of suitable age and discretion then residing

(in the dwelling house)." Fed. R. Civ. P. 4(d)(1). There is no claim in

the record that appellant's friend is not an adult. (The Commission

notes that a 16 year old has been found to be of suitable age and

discretion. See DeGeorge v. Mandata Poultry Company, 196 F.Supp. 192

(D.C. Pa. 1961).) In addition, the Commission notes that the notice

was sent to the same address identified by appellant in her appeal.

Therefore, the Commission finds that the record establishes sufficient

service upon appellant.

Accordingly, appellant was required to file her notice of appeal by

Monday, December 22, 1997. (Since the 30th day following receipt

of the appeal fell on a Sunday, the filing period was extended to

the next working day. See 29 C.F.R. �1614.604(d).) Of course, the

time limits are subject to waiver, estoppel and equitable tolling.

29 C.F.R. �1614.604(c). Here, appellant seeks an extension of the time

period based on her medical condition.

The Commission notes that the record does reflect that appellant

contended that she sustained an injury to her head while on-the-job

in January 1995, although the record also indicates that the agency

may be disputing this claim. See, e.g., ROI p. 2, �4. In evaluating

whether to grant appellant an extension of time for filing the appeal,

the Commission is first troubled by the failure to submit medical

documentation regarding appellant's condition in December 1997,

the relevant period for determining the timeliness of the filing of

the appeal. While the brief filed on appeal states that appellant's

condition deteriorated since the injury was incurred in January 1995,

the Commission notes that the record establishes that appellant was

capable of filing her instant complaint in April 1995, that she was

capable of filing an appeal with this Commission in August 1995, and

capable of filing a six-page brief on that appeal in September 1995.

Further, nowhere does appellant's counsel attempt to explain why appellant

was capable of filing an appeal on Tuesday, December 23, 1997, but not

capable on or before Monday, December 22, 1997.

Accordingly, for the reasons stated above, it is the decision of the

Commission to DISMISS the appeal on the basis that it was not filed

within the 30 day time period prescribed by 29 C.F.R. �1614.402.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Jan 8, 1999

_________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations