01a04960
12-22-2000
Helen King, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Helen King v. Department of Veterans Affairs
01A04960
December 22, 2000
.
Helen King,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04960
Agency No. 200O-569
DISMISSAL OF APPEAL
By Notice of Appeal postmarked June 21, 2000, complainant appealed a May
2, 2000 final decision to dismiss her EEO complaint of unlawful employment
discrimination. On appeal, complainant admits that she received the
decision on May 4, 2000, more than thirty (30) days prior to her appeal.
She requests that the Commission waive the thirty-day time limit for
her appeal because she had surgery during the relevant time period, and
suffers side-effects from medications. Complainant provided no statement
or information concerning her capacity to meet the time limits from her
physician or other health care provider.
A review of the agency's decision reveals that it properly advised
complainant that she had thirty (30) calendar days after receipt of
the decision to file her appeal with this Commission. See 29 C.F.R. �
1614.402(a).
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). Claims of incapacity must be
supported by medical evidence of incapacity. See Crear v. United States
Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992) (complaints
of decreased mental and physical capacity, without medical evidence
of incapacity, does not warrant extension of time limits); cf. Maddux
v. United States Postal Service, EEOC Request No. 05980302 (Aug. 5, 1999)
(psychiatrist's statement that complainant's mental condition rendered
her unable to comprehend her legal rights and responsibilities during
the relevant time frame was found sufficient to justify extension of time
limit); Sohal v. United States Postal Service, EEOC Request No. 05970461
(Apr. 24, 1997) (psychiatrist's statement that complainant's severe
depression and anxiety rendered him unable to make decisions found
sufficient to justify extension). Evidence that a complainant has sought
treatment does not, without evidence of incapacity, justify an extension
of time. See Galbreath v. Navy, EEOC Request No. 05980927 (Nov. 4, 1999)
(evidence that complainant was under great mental stress, and received
an evaluation/treatment, did not render the complainant incapacitated).
Complainant admits that she was untimely and requests waiver of the
time limits. However, she presents no documentation to support her claim
of incapacity; complainant has not provided sufficient justification to
warrant tolling of the time limits. Accordingly, complainant's June 12,
2000 appeal is hereby DISMISSED. See 29 C.F.R. � 1614.403(c).
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 (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
December 22, 2000
__________________
Date