01993829
03-16-2000
Dorothy Long, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Dorothy Long, )
Complainant, )
)
v. ) Appeal No. 01993829
) Agency No. 98-1403
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On April 6, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 12, 1999, pertaining to 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.,
Section 501 of the Rehabilitation Act of 1973, 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.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(African/Native American), color (black), national origin, sex (female),
physical disability, mental disability, age (date of birth March 9,
1945), and in reprisal for prior EEO activity.
The agency dismissed the complaint for failure to file a timely formal
complaint. Specifically, the agency found that complainant received
the notice-of-right-to-file-a-formal-complaint, dated August 26, 1997,
on September 2, 1997. The agency also found that the notice instructed
complainant to file her formal complaint within fifteen days of receipt
of the notice; but complainant did not file her complaint until November
10, 1997. Further, the agency found that complainant's evidence did
not warrant a filing extension on the grounds of incapacitation.
On appeal complainant argues, through her attorney, that she was
incapacitated during the relevant time. Complainant notes that she
was �followed� by a psychiatrist from August 18, 1997 through September
18, 1997, until she was admitted into �partial hospitalization,� from
September 19, 1997 until October 13, 1997. Complainant also contends
that in November 1997, she provided the relevant information regarding
her incapacitation in response to a request from the agency. Further,
complainant asserts that her claims were accepted, and information was
requested regarding the merits of the claims in a letter of inquiry
dated June 23, 1998. Complainant argues that the medical records and
statements relied on by the agency in its FAD were taken out of context,
because they were given in response to a request for information on
the merits of her complaint, not timeliness. Complainant argues that
she suffered from a number of disabling conditions, including recurrent
major depression, rendering her physically and psychologically incapable
of attending to her legal affairs.
In response, the agency contends that complainant presented no evidence
showing that she was completely incapacitated from August 26 to November
10, 1997.
The record includes an undated letter written by complainant's
psychiatrist to the Office of Personnel Management (OPM). In this
letter, the doctor stated that complainant was placed in partial
hospitalization in September 1997, due to her �inability to function at
home,� and thoughts of �giving up.� The record also contains a discharge
record from a psychiatric treatment center, indicating that complainant
received �partial hospitalization� treatment from September 19, 1997
through October 13, 1997. In a separate letter from the center, dated
September 18, 1997, an official explained that �partial hospitalization�
requires the patient to be present at the hospital from 9:00 a.m. until
4:00 p.m. Monday through Friday for treatment. In another letter,
dated April 29, 1999, the psychiatrist stated that complainant was not
competent to attend to her legal affairs from August 26, 1997 until
November 10, 1997.
Complainant's formal complaint is dated November 6, 1997. The record
contains no evidence that the complaint was accepted for investigation.
In the Counselor's Report, dated September 2, 1997, the Counselor noted
that complainant called on September 2, 1997, and stated that she had
completed her �disability papers.� The record also contains confirmation
from the Social Security Administration that complainant's request for
disability benefits was received on September 17, 1997. Further, the
record includes a letter concerning her removal, dated October 14, 1997.
In this letter, the agency informed complainant that a decision regarding
her removal was held in abeyance pending the outcome of her disability
retirement application, filed on October 10, 1997.
A formal complaint must be filed within fifteen days of receiving
notice of the right to do so. See Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.106).
Complaints that fail to comply with this time limit, may be dismissed.
See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)).
In the present case, complainant does not dispute that she received the
notice on September 2, 1997. Therefore, complainant's formal complaint
was untimely even if filed on November 6, 1997.
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 her condition that she 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).
As ordinarily required, complainant presented medical documentation
of her impairments. Nonetheless, in light of complainant's ability to
complete her �disability papers� (and inform the EEO Counselor of such)
on September 2, 1997, her capacity to file a request for Social Security
Disability Benefits on September 17, 1997, and her competence to file for
disability retirement with the agency on October 10, 1997, the Commission
finds that complainant's impairments did not render her unable to file
her formal complaint. Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
March 16, 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 Assistant1On 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.