01985743
09-07-1999
Linda Vasquez, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Linda Vasquez v. Department of the Army
01985743
September 7, 1999
Linda Vasquez, )
Appellant, )
)
v. ) Appeal No. 01985743
) Agency No. BHFRFO9801I0080
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision
was issued on July 13, 1998. The appeal was postmarked July 17, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On January 13, 1998, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
On July 1, 1998, appellant filed a formal complaint, alleging that she was
the victim of unlawful employment discrimination on the bases of race,
national origin, disability, and reprisal. Specifically, appellant
alleged that she was coerced into resigning from agency employment on
August 4, 1997.
On July 13, 1998, the agency issued a final decision, dismissing
appellant's complaint for failure to initiate contact with an EEO
Counselor in a timely fashion. The agency noted that appellant alleged
that she only became aware on January 13, 1998, that she had been coerced
into resigning in August 1997, and that her delay in pursuing the EEO
complaint process was attributable to a mental condition. The agency
rejected this argument, and found that appellant had not established that
she was so incapacitated by her mental condition that she was incapable
of meeting the forty-five day limitation period for timely contacting
an EEO Counselor.
On appeal, appellant's attorney argues that appellant suffers from
depression; that lack of communication from agency officials prior to
her resignation on August 4, 1997, greatly exacerbated her depression;
and that appellant has demonstrated good cause in the delay to contact
an EEO Counselor.
The record in this case contains several medical documents from
appellant's physicians. One letter, dated July 30, 1996, states that
appellant is under the physician's care and is unable to return to work
until her condition improves. The letter contains no identification
of her condition. A letter dated September 4, 1996, indicates that
appellant was referred to the physician because of depression; that she
gets very anxious; and that her physical condition worsens whenever she
talks about her experiences at work and her perceptions of harassment.
Another letter, dated October 2, 1996, indicates that she gets very
anxious and starts crying whenever she begins talking about harassment
within her department.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Appellant argues that her delay in contacting an EEO Counselor was
attributable to depression, and that she only became aware on January 13,
1998, that she had been coerced into resigning from agency employment
in August 1997. When an appellant claims that a physical condition
prevents her from meeting a particular filing deadline, the Commission
has held that in order to justify an untimely filing, the appellant must
be so incapacitated by the condition as to render her physically unable
to make a timely filing. See Zelmer v. USPS, EEOC Request No. 05890164
(March 8, 1989). The same is true of incapacity related to psychiatric or
psychological conditions. See Crear v. USPS, EEOC Request No. 05920700
(October 29, 1992). The record contains several medical documents
preceding appellant's separation from agency employment. However,
nothing in the record supports appellant's contention that she was
so incapacitated during the applicable forty-five day period as to
prevent her from timely contacting an EEO Counselor. Appellant failed
to present adequate justification pursuant to 29 C.F.R. �1614.105(a)(2),
for extending the limitation period beyond forty-five days. Accordingly,
the agency's decision to dismiss appellant's complaint for failure to
initiate contact with an EEO Counselor in a timely fashion was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Sept. 7, 1999
_________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations