01a04130
08-31-2000
Martha A. Wallace, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Martha A. Wallace v. Department of Veterans Affairs
01A04130 & 01A04436
August 31, 2000
.
Martha A. Wallace,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 01A04130 & 01A04436
Agency Nos. 99-3300 & 98-3646
DECISION
Martha A. Wallace (complainant) filed timely appeals with this Commission
from final agency decisions (FAD) dated April 28, 1999 and May 9, 2000.
Both FADs dismissed her complaints 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The Commission hereby consolidates these
appeals for the sake of clarity and judicial economy.
In her first complaint, filed on October 10, 1998, complainant alleged
that she was subjected to discrimination on the bases of race/color
(White), sex (female), national origin (white), age (56-57 at relevant
time), disability (vision) and reprisal (prior EEO activity) (Complaint
1).<2> In support of this claim, complainant identified the following
incidents:
training (should have been timely and not on tapes);
working conditions (co-worker was cursing);
assignment of duties (sweeping and mopping floors, cleaning tables,
and performing duties in the dish room without any help from other
employees);
harassment (not informed of scheduled interview until scheduled time
for interview; supervisor did not tell co-worker to leave complainant's
container alone while working in dish room; supervisor told her he
couldn't use her when she reported to work, but a co-worker reported
for duty on her scheduled off day; supervisor asked her why she had to
be offended by everything when she reported dirty pie plates in break
room; not scheduled for training; not promoted; unfair assignments).
In her second complaint, filed on August 4, 1999, complainant alleged
that she was subjected to discrimination on the bases of race (white),
sex (female), age (56-57 at relevant time), disability (eye condition)
and reprisal (prior EEO activity) (Complaint 2).<3> In support of this
claim, complainant identified the following incidents:
assignment of duties
harassment;
performance appraisal/proficiency report;
reprimand;
training; and
working conditions.<4>
The agency dismissed various claims for different reasons, but also
dismissed both complaints in their entirety pursuant to EEOC Regulation 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 failure to comply with applicable
time limits. Specifically, the agency noted that complainant received
the Notice of Right to File a Formal Complaint (Notice) for Complaint
1 on September 24, 1998, but did not file the formal complaint until
October 10, 1998, one day after the 15 day time period established in 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.106(b)). The agency also noted that complainant
received the Notice for Complaint 2 on July 17, 1999, but failed to
file a formal complaint until August 4, 1999, several days after the
expiration of the time period.
While the agency acknowledged that this time period is subject to waiver,
it found that complainant failed to respond to its letter requesting
an explanation as to why the complaints were untimely. The agency
further noted that when it did not receive a reply to its letter,
an EEO Intake Specialist called complainant and asked about the delay.
According to the agency, complainant stated that she had health problems
such as high blood pressure and back problems, and that she could not get
anyone from the Union or the EEO office to help her file her complaints.
The agency concluded that these reasons did not justify a waiver of the
time requirements.
The agency noted in its FAD that complainant had received information
from the EEO office, as evidenced by the various counseling papers
she signed. Moreover, the agency concluded that, due to complainant's
experience filing EEO complaints, she should have been knowledgeable
of the EEO process. Finally, the agency found that while complainant
mentioned health problems, she neither claimed nor provided evidence to
establish that she was physically unable to file her complaint during
the 15 day time period.
Although complainant provides an appeal statement, she offers no further
explanation of her failure to file her formal complaints within the
applicable time period. The agency reiterates the arguments presented
in its FADs and asks that both FADs be affirmed.
Commission regulations require that formal complaints be filed within
15 days of receipt of the notice of right to file a formal complaint.
See 29 C.F.R. � 1614.106(b)). This time limit, like others, is subject
to waiver, estoppel, and equitable tolling. See 29 C.F.R. � 1614.604(c).
In the case at hand, complainant failed to establish that the time limit
should be waived or otherwise extended. She explained that she missed
the 15 day time limit because she could not get anyone from the Union
or the EEO office to assist her and because she had health problems.
Complainant did not, however, specify what problems she encountered when
attempting to file her complaint. Moreover, the record establishes
that complainant went through the informal counseling process with an
EEO counselor who provided her with the required documents, including
information about the time limits. It is also clear from the record that
complainant was sent the notice of right to file form, which explained
the time limit and included a copy of the formal complaint form.
In regard to complainant's claim that health problems prevented her from
filing her complaints in a timely manner, in cases involving physical or
mental health difficulties, the Commission has consistently held that an
extension is warranted only where an individual is so incapacitated by
her condition that she is unable to meet the regulatory time limits. See
Crear v. United States Postal Service, EEOC Request No. 05920700
(October 29, 1992); Weinberger v. Department of the Army, EEOC Request
No. 05920040 (February 21, 1992); Hickman v. Department of the Navy,
EEOC Request No. 05910707 (September 30, 1991); Johnson v. Department of
Health and Human Services, EEOC Request No. 05900873 (October 5, 1990);
and Zelmer v. United States Postal Service, EEOC Request No. 05890164
(March 8, 1989). This does not apply in the case at hand, as complainant
provided no evidence to establish that she was physically or mentally
unable to meet the time limits. Indeed, complainant failed to respond
to the agency's written request for an explanation of the untimeliness
of her complaints, and only attributed her delay to health problems
when the agency went the extra step of telephoning her. Moreover,
even on appeal, after complainant was made aware that her previous
explanations were insufficient to justify a waiver of the time limit,
she provides no additional argument or evidence.
Because we agree with the agency that complainant failed to file her
formal complaints within the applicable time limit and failed to provide
sufficient justification for a waiver, there is no need to analyze the
agency's other reasons for dismissal. Accordingly, after a careful
review of the record, we find that the agency's dismissal of Complaint
1 and Complaint 2 was proper and hereby AFFIRM the FADs.
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 (S0400)
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
August 31, 2000
__________________
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 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.
2 Agency Case No. 98-3646, EEOC Appeal No. 01A04436.
3 Agency Case No. 99-3300, EEOC Appeal No. 01A04130.
4 The EEO Counselor's report provides more details for some of these
incidents.