01991807
02-15-2000
Ralph Williams, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Ralph Williams, )
Complainant, )
)
v. ) Appeal No. 01991807
) Agency No. OS-99-001
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
DECISION
On January 2, 1999, complainant filed a timely appeal with this
Commission from a December 3, 1998 final agency decision (FAD),
pertaining to his 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.<1> In his complaint, complainant alleged that
he was subjected to discrimination in reprisal for prior EEO activity
when complainant's former supervisor would not approve a within-grade
increase, and complainant was subjected to continual harassment from
June 1998 through July 1998.<2>
The agency dismissed the complaint for failure to timely file the formal
complaint. Specifically, the agency found that complainant signed
and dated his notice-of-right-to-file-a-formal-complaint on August 19,
1998, but failed to file until October 1, 1998. The agency noted that
the formal complaint should have been submitted by September 3, 1998.
Regarding complainant's argument that he was unable to file a complaint
due to medical incapacity, the agency found that complainant submitted
medical documentation that he was incapacitated on August 20 and 21, 1998.
The agency noted, however, that if complainant was given an extension
of two-days to make up for the time lost, or even if he was given an
extension of another full fifteen-day filing period, his complaint still
would have been untimely. The agency notes that complainant requested
an extension on September 25, 1998, but states that the extension was
not granted, and was made after the expiration of the applicable filing
period.
On appeal, complainant argues, through his attorney, that complainant did
not receive the notice-of-right-to-file-a-formal-complaint until August
20, 1998, although he dated the document August 19, 1998. Further,
complainant asserts that he kept the agency apprized of his medical
condition, and requested an extension from the EEO Counselor on August
21, 1998, and also from the EEO Director. Complainant does not contend
that his requests were granted, but notes that if they had been granted,
then the deadline would have been extended until September 19, 1998.
Complainant notes that he was taking medication for diverticulitis,
irritable bowel syndrome, and depression. Complainant also contends
that he was unable to give adequate attention to his complaint during
the entire month of September because he spent all of his time and
energy dealing with workplace stress, and attempting to be an exemplary
employee on his detail. Finally, complainant argues that he mailed the
formal complaint on September 25, 1998, but the agency did not receive
it until October 1, 1998.
Complainant attached a letter from his physician, indicating that
complainant was �followed� by the doctor from September 1, 1998 through
October 1, 1998.
In response, the agency argues that complainant's evidence of incapacity
was only supported with respect to August 13, 1998, through August
21, 1998. The agency also argues that complainant's formal complaint
was not filed until October 5, 1998, or at the earliest October 2, 1998.
The agency claims that the September 25, 1998 letter concerned a request
for extension, but did not include a copy of the formal complaint.
The agency asserts that neither the EEO Counselor or EEO Director granted
complainant an extension in August 1998, and that complainant should
be entitled to an extension of only two days. Accordingly, the agency
contends, the formal complaint should have been filed by September 8,
1998 (the day after Labor Day). The agency also notes that complainant
was employed during the entire month of September, and therefore could
not have been so incapacitated that he could not file a formal complaint.
The agency attached an affidavit from the EEO Counselor, stating that
she never granted complainant an extension, and that she did not have
the authority to do so. The agency also submitted a signed declaration
from the EEO Director, stating that no decision was made on complainant's
requests for extension because he submitted no medical support for his
requests. The Director also states that complainant hand-delivered her
formal complaint on October 5, 1998.
The agency provided the time and attendance records of complainant for the
month of September, indicating that complainant was employed full-time,
and was not charged for using any leave during that period. The record
also contains a letter from complainant dated August 21, 1998, informing
the EEO Counselor that complainant would not be able to meet the fifteen
(15) day deadline for filing his complaint. The agency also submitted
a document stating that complainant hand-delivered his formal complaint
for Agency No. OS-97-013. This document is signed and dated by the EEO
Director on October 5, 1998, and by complainant on October 2, 1998.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a formal complaint. The regulations also provide for the dismissal
of complaints that fail to comply with this time limit, unless the
agency extends the time limit in accordance with 29 C.F.R. 1614.604(c).
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)).
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
is so incapacitated by his condition that he is unable to meet the
regulatory time limits. See Davis v. United States Postal Service,
EEOC Request No. 05980475 (Aug. 6, 1998). Claims of incapacity must be
supported by medical evidence of incapacity. See Crear v. United States
Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992) (complaints
of decreased mental and physical capacity, without medical evidence
of incapacity, does not warrant extension of time limits); cf. Maddux
v. United States Postal Service, EEOC Request No. 05980302 (Aug. 5, 1999)
(psychiatrist's statement that complainant's mental condition rendered
her unable to comprehend her legal rights and responsibilities found
sufficient to justify extension of time limit); Sohal v. United States
Postal Service, EEOC Request No. 05970461 (Apr. 24, 1997) (psychiatrist's
statement that complainant's severe depression and anxiety rendered him
unable to make decisions found sufficient to justify extension). Evidence
that a complainant has sought treatment does not, without evidence
of incapacity, justify an extension of time. See Galbreath v. Navy,
EEOC Request No. 05980927 (Nov. 4, 1999) (evidence that complainant
was under great mental stress, and received an evaluation/treatment,
did not render the complainant incapacitated).
Complainant admits on appeal that he dated the
notice-of-right-to-file-a-formal-complaint August 19, 1998, but actually
received it August 20, 1998.<3> Complainant clearly was aware of his
duty to file within fifteen days, as evidenced by his August 21, 1998
letter. Assuming that complainant received the letter on August 20,
1998, his formal complaint would have been timely if filed by Friday,
September 4, 1998.
The agency admits that complainant was incapacitated from August 13
through August 21, 1998. The letter from complainant's physician stating
that complainant was �followed� from September 1, 1998 to October 1,
1998, however, does not establish that complainant was incapacitated
during that period. To the contrary, complainant admits, and the record
reveals, that complainant was working during the month of September 1998.
The Commission finds that complainant was entitled to an extension for the
period of his incapacity -- August 20 and 21, 1998. Because September 6,
1998 is a Sunday, complainant had until Tuesday September 8, 1998, the
next business day, to file his complaint. Regardless of the dispute
over the exact date on which complainant filed his complaint, it is
clear that complainant did not file the formal complaint on or before
September 8, 1998. Even using the date of filing alleged by complainant,
September 25, 1998, his formal complaint was untimely filed. Accordingly,
the agency's dismissal pursuant to 29 C.F.R. � 1614.107(a)(2) was proper.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 15, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 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.
2Complainant listed six incidents of harassment in his formal complaint.
3The notice itself was not included in the record.