Josefina Placides, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01a03114 (E.E.O.C. Jul. 12, 2000)

01a03114

07-12-2000

Josefina Placides, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.


Josefina Placides v. Defense Contract Audit Agency

01A03114

July 12, 2000

Josefina Placides, )

Complainant, )

)

v. ) Appeal No. 01A03114

) Agency No. W0004

)

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Contract Audit Agency), )

Agency. )

_________________________________)

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2), for

untimely EEO contact and for failure to file the formal complaint in a

timely manner.<1> The record discloses that the alleged discriminatory

events occurred from 1991 -1993, but complainant did not initiate

contact with an EEO Counselor until July 7, 1995, which is beyond either

the thirty (30) day time limitation which was required by Commission

regulations in 1991 through October 1992, or the forty-five (45) day

time limitation required in complaints arising after October 1992. On

October 4, 1995, complainant received a notice of her right to file a

formal EEO complaint. Complainant filed her formal EEO complaint on

December 23, 1999, which is beyond the fifteen (15) day time limitation

required by Commission regulations.

On appeal, complainant argues that the time limitations should be

waived in her case due to multiple job related injuries including a

nervous breakdown. The record includes a letter from a Licensed Clinical

Psychologist indicating that complainant had been under her care for a

serious emotional illness since January 4, 1994. The Psychologist further

stated that, during the relevant time period, complainant was mentally

unable to file the necessary paperwork for her formal EEO complaint.

According to the Psychologist, complaint experienced a lengthy period

of helplessness and lack of motivation.

When a complainant claims that a physical or mental condition prevents

her from meeting a particular filing deadline, the Commission has

held that in order to justify an untimely filing, complainant must

be so incapacitated by the condition as to render her unable to make

a timely filing. See Crear v. United States Postal Service, EEOC

Request No. 05920700 (October 29, 1992). The record shows, that during

the relevant time period, complainant was mentally incapacitated to the

point that she was forced to stop working and was granted OWCP benefits.

This, coupled with persuasive evidence from complainant's psychologist

and the record as a whole, constitutes adequate reason for tolling the

time limitations in complainant's case. Accordingly, the agency's final

decision is REVERSED and complainant's complaint is REMANDED for further

processing in accordance with the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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

hereinafter referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

07-12-00

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

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

sector complaint process went into effect. These regulations 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.