05A01077
07-17-2001
Josefina L. Placedes v. Department of Defense
05A01077
July 17, 2001
.
Josefina L. Placedes,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Request No. 05A01077
Appeal No. 01A03114
Agency No. W0004
DECISION ON REQUEST FOR RECONSIDERATION
On August 2, 2000, the Department of Defense (agency) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Josefina L. Placedes v. Department of
Defense, EEOC Appeal No. 01A03114 (July 12, 2000). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. � 1614.405(b). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following two criteria:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or the decision will have a substantial impact on
the policies, practices or operations of the agency.
The issue in this case is whether the agency properly dismissed
complainant's EEO complaint for untimely EEO contact and for failure to
file the formal complaint in a timely manner. As the previous decision
discussed, the alleged discriminatory events occurred from 1991-1993.
Complainant contacted an EEO Counselor on July 7, 1995. On October 4,
1995, she received a notice of her right to file a formal EEO complaint.
On December 23, 1999, complainant filed her formal complaint. The
previous decision reversed the agency's dismissal based on a December
1999 letter submitted by complainant's Psychologist. In the letter,
the Psychologist indicated that since January 4, 1994, complainant had
been under her care for serious emotional illness and had been mentally
unable to file the necessary EEO paperwork in a timely manner or to act
in her own best interest during the relevant time period.
In its request for reconsideration, the agency emphasizes that in March
1998, complainant was cleared by her psychologist to return to work for
several hours a day despite her emotional difficulties. In her response,
complainant submits no specific rebuttal to this argument. Rather,
complainant argues, generally, that the agency's discriminatory actions
rendered her so emotionally and physically disabled that she was unable
to meet time deadlines in her EEO complaint.
The Commission has consistently held that the failure to meet an EEO
filing deadline will be excused only if the complainant establishes she
was so physically or emotionally incapacitated that she was unable to
meet the regulatory time limitations. Crear v. U.S. Postal Service, EEOC
Request No. 05920700 (October 29, 1992); Zelmer v. U.S. Postal Service,
EEOC Request No. 05890164 (March 8, 1989). After carefully considering
the agency's arguments herein and upon reconsideration of the record,
we find that complainant has not shown that she was so incapacitated by
her conditions as to render her unable to file her formal EEO complaint
prior to December 23, 1999. We find that complainant's arguments for
waiving the time limitation are seriously undermined by the fact that
she was cleared to return to work almost two years before she filed
her formal complaint. Having made this finding, there is no need to
address the issue of the timeliness of complainant's request for EEO
counseling. Accordingly, the Commission finds that the request meets
the criteria of 29 C.F.R. � 1614.405(b) and it is the decision of the
Commission to GRANT the agency's request. The decision of the Commission
in EEOC Appeal No. 01A03114 is REVERSED and the agency's dismissal of the
complaint is hereby AFFIRMED. There is no further right of administrative
appeal on the decision of the Commission on this Request to Reconsider.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
July 17, 2001
_________________________
Frances M. Hart
Executive Officer
Executive Secretariat
______________________
Date