Grace E. Carey, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.

Equal Employment Opportunity CommissionNov 18, 1999
01983488 (E.E.O.C. Nov. 18, 1999)

01983488

11-18-1999

Grace E. Carey, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.


Grace E. Carey v. Department of Defense

01983488

November 18, 1999

Grace E. Carey, )

Complainant, )

)

v. ) Appeal No. 01983488

) Agency No. AG98001

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency) )

Agency. )

______________________________)

DECISION

On March 27, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) 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.<1> In her complaint,

complainant alleged that she was subjected to discrimination on the

basis of race (black) when a white applicant was preselected for a

program analyst position, GS-343-7, for which she was better qualified.

After complainant filed her formal complaint, the agency notified her

that it had not been filed within the time-frame specified under EEOC

Regulation 29 C.F.R. �1614.106(b), and requested an explanation. The

agency subsequently considered and rejected complainant's explanation

for her untimely filing, and dismissed her allegation pursuant

to EEOC Regulations for failure to comply with applicable time

limits. Specifically, the agency determined that because complainant's

letter containing her complaint was postmarked December 20, 1997,

one day after the filing period expired, her complaint was untimely.

The agency further stated that because complainant's explanation for her

untimely filing indicated her medical condition was not incapacitating,

an extension of the time limit due to a physical condition was not

warranted.

EEOC Regulation 29 C.F.R. �1614.106(b) requires that complainants

file their formal complaints of discrimination within 15 days of their

receipt of a notice of the right to file a discrimination complaint. This

time limit is subject to waiver, estoppel, or equitable tolling. 29

C.F.R. �1614.604(c). Pursuant to 64 Fed. Reg. 37644, 37656 (1999)

(to be codified as 29 C.F.R. �1614.107(b)), an agency shall dismiss a

complaint which was not filed within the 15-day time period.

Here, the record reflects that complainant received her notice of right

to file a complaint on December 4, 1997. Complainant therefore had until

December 19, 1997, to timely file her formal complaint. The record

indicates that the subject complaint was postmarked December 20, 1997.

Volume 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.604(b)) provides that a document shall

be deemed timely if it is received or postmarked before the expiration

of the applicable filing period. As the postmark on complainant's filing

was beyond the fifteen-day time limitation, her complaint was untimely.

Moreover, the Commission finds that complainant failed to submit

adequate justification for extending the time for filing beyond the

regulatory period. In the present case, complainant contends that she

had a physical condition, specifically a broken tailbone, which made her

"depend on others to take [her] places." The Commission has 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); Weinberger v. Department of the Army,

EEOC Request No. 05920040 (February 21, 1992); Hickman v. Department

of the Navy, EEOC Request No. 05910707 (September 30, 1991); Johnson

v. Department of Health and Human Services, EEOC Request No. 05900873

(October 5, 1990); and Zelmer v. United States Postal Service, EEOC

Request No. 05890164 (March 8, 1989). Because the evidence does not

support that complainant was so incapacitated as to have been unable to

pursue her EEO complaint in a more timely manner, we find no basis for

tolling the time limit for filing her complaint.

Accordingly, the agency's decision dismissing complainant's formal

complaint as untimely is hereby AFFIRMED for the reasons set forth above.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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) 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(b). 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).

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:

November 18, 1999

____________________________

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:

_________________________ __________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulation 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.