01A10304
01-29-2001
Leonor Ramiscal, Complainant, v. John Hanson, Acting Secretary, Department of Veterans Affairs, Agency.
Leonor Ramiscal v. Department of Veterans Affairs
01A10304
January 29, 2001
.
Leonor Ramiscal,
Complainant,
v.
John Hanson,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10304
Agency No. 200P-2454
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq.<1> The Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
On June 29, 2000, complainant contacted the EEO office regarding claims
of harassment and hostile work environment. Informal efforts to resolve
complainant's concerns were unsuccessful. On August 10, 2000, complainant
filed a formal complaint.
The agency issued a decision, on September 13, 2000, dismissing the
complaint for untimely EEO Counselor contact. Specifically, the agency
determined that complainant's claims were based on incidents from April
1999 through December 1999. The agency found that because her Counselor
contact appeared to be untimely, the agency wrote to complainant and
requested an explanation. Complainant's attorney responded, stating
that complainant's mental state prevented her from timely contacting the
EEO office. The agency noted that the record contained a psychiatric
report on complainant, which concluded that she was unable to cope with
stress and return to work. The agency noted, however, that complainant
timely filed an Office of Workers' Compensation (OWCP) claim on February
17, 2000. Therefore the agency concluded that complainant's mental
condition did not so incapacitate her as to prevent her from timely
contacting an EEO Counselor.
On appeal, complainant, through her attorney, argues that the time limit
should be waived because from December 21, 1999 and beyond August 10,
2000, she was �mentally incompetent or otherwise unable to handle her
legal, financial or other affairs.� Complainant's attorney noted that
complainant was under the care of a psychiatrist and psychotherapist, and
unable to cope with stress and work. Included with the appeal statement
is a copy of a November 7, 2000 letter from complainant's psychiatrist,
stating that complainant was �extremely depressed and distraught and
medically incompetent to take charge of her affairs and make the necessary
appropriate decisions.� Regarding the agency's assertion that complainant
was capable of timely filing an OWCP claim, complainant's attorney argues
that complainant was advised by the Workers' Compensation Clerk at work
and that absent such advise she would not have filed the claim.
In response, the agency argues that complainant's excuse �is not
sufficiently borne out by the evidence of record.� The agency contends
that complainant contacted the EEO office more than six months after the
most recent incident of alleged harassment, but that during that six-month
period, complainant filed a timely OWCP claim and corresponded with the
Office of Resolution Management regarding a pending EEO complaint (Case
No. 98-3046). The agency asserts complainant therefore had sufficient
mental capacity to timely contact an EEO Counselor.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
A review of the record confirms that during the period that complainant
was purportedly incapacitated by her mental condition, she filed an
OWCP claim and wrote to the agency regarding another EEO complaint.
Although she was receiving care from a psychiatrist and psychotherapist
for depression and stress, we are not persuaded that complainant was so
incapacitated by her mental condition that she was unable to contact
an EEO Counselor. Accordingly, the agency's decision to dismiss the
complaint was proper and is hereby AFFIRMED.
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
January 29, 2001
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.