01a04774
11-01-2000
Donna M. Epps, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Donna M. Epps v. Department of Veterans Affairs
01A04774
November 1, 2000
.
Donna M. Epps,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04774
Agency No. 200H1580
DECISION
Donna M. Epps (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 15, 2000 dismissing her
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.<1> In her complaint, complainant alleged that she was subjected
to discrimination on the basis of race (Black) when, on March 24, 2000,
she was informed that she would be detailed to the position of Program
Support Assistant and was subsequently reassigned to that position,
for which there was no actual vacancy.
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(2), for failure to file a formal complaint within the 15-day
period required by 29 C.F.R. � 1614.106(b). The agency noted that
complainant received the Notice of Right to File on May 5, 2000, but did
not file her complaint until May 22, 2000, two days after the expiration
of the time period. The agency found complainant's explanation for this
delay, namely, that she thought she filed a formal complaint when she
signed the Notice of Rights and Responsibilities and was under stress,
insufficient to justify a waiver of the time requirement for filing a
formal complaint.
On appeal, complainant contends that she was prevented from filing her
complaint in a timely manner due to health problems. She notes that
she had �same day surgery� on April 27, 2000 and again on May 12, 2000
and was hospitalized on May 30, 2000, due to a problem with her foot.
Complainant concludes that any untimely submissions are excused by these
facts.
In response, the agency notes that complainant is raising this issue
for the first time on appeal. The agency also notes that complainant
signed and returned the Notice of Right to File on May 15, 2000 and
concludes that if she could perform this task, she was not incapacitated.
The agency asks that its FAD be affirmed.
FINDINGS AND ANALYSIS
After a careful review of the record, we find that the agency improperly
dismissed the complaint. The agency noted that complainant received the
Notice of Right to File on May 5, 2000 and argued that the expiration
of the time period therefore fell on May 20, 2000, two days before
complainant's complaint was received. We note, however, that May 20,
2000 was a Saturday. Commission regulations require that when the last
day of a time period falls on a Saturday, Sunday, or Federal holiday,
the period shall be extended to include the next business day. See 29
C.F.R. � 1614.604(d). In the case at hand, the period should therefore
have been extended to May 22, 2000. As the agency received complainant's
complaint on May 22, 2000, it is timely.<2>
Therefore, the FAD is hereby REVERSED and the matter REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
November 1, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 As we find complainant's complaint to be timely, we need not address
complainant's argument that she was unable to timely file her complaint
due to health problems.