01a50792
02-02-2005
Danielle Cabrera, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Danielle Cabrera v. General Services Administration
01A50792
February 2, 2005
.
Danielle Cabrera,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A50792
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, dated September 27, 2004, dismissing her 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on sex, age and disability. Informal efforts to resolve
complainant's concern were unsuccessful. Complainant filed a formal
complaint, dated September 23, 2004.
In its September 27, 2004 final decision, the agency dismissed the
complaint on the grounds that it was untimely filed. The agency found
that complainant received the Notice of Right to File a Discrimination
Complaint (hereinafter �Notice�) on September 6, 2004, but that her formal
complaint was dated September 23, 2004 and received by the agency �via
e-mail� on September 24, 2004. The agency determined that the complaint
was filed beyond the fifteen-day time limitation. Additionally, the
complaint was dismissed for failure to state a claim.
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 Notice of Right to File a Formal Complaint, acknowledged by
complainant as having been received on September 6, 2004, informed
her that she had fifteen days from the date of receipt of the Notice
in which to file a formal complaint. The record further reflects that
complainant did not file a formal complaint within fifteen days of her
receipt of this Notice but, instead filed the formal complaint two days
beyond the time limit.
On appeal, complainant argues that during the relevant time she was
�suffering from an exacerbation of Post Traumatic Stress Disorder
and Panic Disorder, due to the passing of her uncle. . . .� More
specifically, complainant contends that she was in Puerto Rico between
September 8 and 14, 2004. Complainant notes that upon her return,
�during several weeks in the middle of September�, �she could not
understand simple things and could not respond to her mail.�
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 his condition that he is unable to meet the regulatory
time limits. See Davis v. United States Postal Service, EEOC Request
No. 05980475 (August 6, 1998); Crear v. United States Postal Service,
EEOC Request No. 05920700 (October 29, 1992). In the instant case,
while we sympathize with complainant's loss, we note that she received
the Notice prior to her travel. Further, she states that she �forced
herself to come in [to work] during this time period, September 17,
2004 and September 21, 2004....� Therefore, we do not find that she
was so incapacitated that she was unable to meet the time limit.
Because of our disposition we do not consider whether the complaint was
also properly dismissed for failure to state a claim.
Accordingly, the agency's decision to dismiss the complaint as untimely
filed was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 2, 2005
__________________
Date