01a41648
04-27-2004
Jerome C. McCoy, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jerome C. McCoy v. Department of Veterans Affairs
01A41648
April 27, 2004
.
Jerome C. McCoy,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A41648
Agency No. 200H06042003104
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint.
The record discloses that complainant received the notice of right
to file a formal complaint on October 21, 2003. Although the notice
indicated that complainant had to file a formal complaint within fifteen
(15) calendar days of its receipt, complainant did not file his formal
complaint until December 2, 2003, which is beyond the limitation period.
On appeal, complainant requested a waiver of the time limits because
he was mentally incapable of handling his affairs after receiving a
court notice and eviction notice. Complainant also contends that he
was medically diagnosed with suicidal tendencies, severe depression
and anxiety.
The Commission has held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
is so incapacitated by his condition that he is unable to meet the
regulatory time limits. See Davis v. USPS, EEOC Request No. 05980475
(Aug. 6, 1998). Claims of incapacity must be supported by medical
evidence of incapacity. See Crear v. USPS, 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. USPS, 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
found sufficient to justify extension of time limit); Sohal v. USPS,
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).
On appeal, complainant submits various medical progress records regarding
his medical conditions; however, nothing in these records supports
the contention that he was so incapacitated so as to prevent him from
timely filing his complaint. Complainant has failed to present adequate
justification for extending the filing period.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
Because we are affirming the agency's dismissal of the complaint on
the grounds of untimely filing of the complaint, we will not address
the agency's alternative grounds for dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 27, 2004
__________________
Date