01987039
09-13-1999
Debra A. Seymour, Appellant, v. Larry H. Summers, Secretary, Department of the Treasury, Agency.
Debra A. Seymour v. Department of the Treasury
01987039
September 13, 1999
Debra A. Seymour, )
Appellant, )
)
v. )
) Appeal No. 01987039
Larry H. Summers, ) Agency No. 98-2218
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On September 28, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD), dated August 27, 1998,
dismissing appellant's complaint for failure to timely file the complaint.
The Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
The record shows that appellant received the Notice of Right to File a
Complaint on April 16, 1998. She did not file a complaint until June 6,
1998, well beyond the fifteen (15) day time limit. In a letter dated
May 18, 1998, which appears to have been submitted with her complaint,
appellant presents several "unforeseen circumstances" that prevented her
from timely filing. Appellant points to problems with her son's school,
car troubles, and "aches and pains" as reasons for her delay.
In the FAD, the agency properly considered whether appellant's reasons for
late filing warranted an extension of the filing period, and concluded
it did not. Specifically, the agency determined that appellant was not
so incapacitated that she was unable to take care of day-to-day matters.
The agency stated that appellant's failure to timely file her complaint
was "based on her own decision" and "not due to circumstances beyond
her control."
On appeal, appellant's attorney argues that the agency failed to comply
with 29 C.F.R. 1614.605(d) when it neglected to serve him the Notice of
Right to File. Instead the agency served the notice on the appellant
directly. Therefore, appellant's complaint should be considered timely.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a complaint required by 29 C.F.R. � 1614. 105(d), (e), or (f).
This time limit is subject to waiver, estoppel, or equitable tolling. See
29 C.F.R. � 1614.604.
EEOC Regulation 29 C.F.R. � 1614. 605(d) provides that when a complaint
designates an attorney as representative, service of documents and
decisions on the complainant shall be made on the attorney and not on the
complainant, and time frames for receipt of materials by the complainant
shall be computed from the time of receipt by the attorney.
Based on a review of the record, we find that appellant did not inform
the agency that she was represented by an attorney until she filed her
complaint. Appellant's attorney argues that appellant designated him to
serve as her representative in a document dated January 13, 1998. This
document, however, refers to "Case Numbers 97-2250 and 98-2050 and any
other complaints that may be filed by me." We find this general language
insufficient to put the agency on notice of appellant's representation
in this case. Appellant's attorney also refers to letters sent to him
by the agency, before and after the Notice of Right to File was signed by
appellant. Again, we note that the correspondence relied upon refers to
appellant's prior cases and not the current complaint. Further, on April
2, 1998 appellant signed an "EEO Counselor Checklist" that notified her of
her right to be represented and instructed her to complete a Designation
of Representative form if she named a representative. Such a form is
absent from the record, and appellant does not contend that one was
executed for the current complaint. Therefore, we find that appellant
was not represented by an attorney during the EEO Counseling stage and
the agency was not required to send the notice to appellant's attorney.
With respect to appellant's reasons for her untimely filing, we
are not persuaded. Problems with her son's school and car troubles,
although unfortunate and time consuming, do not warrant an extension of
the filing period. Appellant also refers to physical health problems.
Where an appellant alleges that he or she was unable to meet applicable
EEO time limits because of physical or mental health problems, the
Commission has held that an extension of time is warranted "only where
an individual is so incapacitated by his condition that he is unable to
meet the regulatory time limits." See Kapp v. Department of the Navy,
EEOC Request No. 05940662 (January 23, 1995); Hemphill v. Department
of Defense (Defense Investigative Service), EEOC Request No. 05930342
(September 17, 1993). Appellant has not shown herself to be so
incapacitated.
Having reviewed the entire record, the arguments on appeal, including
those not explicitly addressed herein, and for the foregoing reasons,
the Commission hereby AFFIRMS the agency's dismissal of appellant's
complaint for untimely filing pursuant to 29 C.F.R. � 1614.107(b).
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. �1614.604(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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
September 13, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations