Helen King, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 22, 2000
01a04960 (E.E.O.C. Dec. 22, 2000)

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