01a10434
02-23-2001
Sitala Sitala, Jr., Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Sitala Sitala, Jr. v. Department of Transportation
01A10434
February 23, 2001
.
Sitala Sitala, Jr.,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A10434
Agency No. DOT-6-00-6090
DECISION
On October 6, 2000, complainant filed an appeal with this Commission from
an agency decision pertaining to his 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.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding termination of �post
differential pay.� Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, complainant filed a formal complaint.
On September 1, 2000,<2> the agency issued a decision dismissing the
complaint on the grounds that it was untimely filed. Specifically,
the agency determined that complainant received his Notice of Right to
File a Discrimination Complaint (hereinafter �Notice�) on August 4, 1999.
The formal complaint was dated May 4, 2000, and mailed on June 1, 2000,
well beyond the fifteen-day time limitation. The complaint was also
dismissed for failure to state a claim.
On appeal, complainant argues that between July and August 1999, he
was becoming very ill and, therefore, he was unable to timely file a
complaint. He asserts that his health problems began in July 1999, with
a visit to the dentist ; and that when his condition did not improve he
sought medical attention in Honolulu on August 4, 1999, flying there with
his wife. Complainant asserts that his last appointment was on August
20, 1999, and that he returned to American Samoa on August 23, 1999.
Complainant acknowledges that on August 4, 1999, his wife signed for
his registered mail, but contends that he did not know how she got it.
He argues that it was only after returning home that he became aware of
the Notice. Additionally, complainant states that during December 1999,
he was in California for his mother's funeral and that in May 2000,
he again went to Honolulu for emergency medical care.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so.
Complainant admits, and a copy of a Domestic Return Receipt shows, that
his wife received his Notice on August 4, 1999. The Notice informed
complainant that he had fifteen days from the date of receipt of the
Notice in which to file a formal complaint. The record further reflects
that complainant did not file his complaint within fifteen days of receipt
of the Notice but, instead filed the formal complaint on June 1, 2000.
Complainant argues that ill health prevented him from timely filing
his complaint. 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 (August 6, 1998); Crear v. United States
Postal Service, EEOC Request No. 05920700 (October 29, 1992). Here,
although complainant apparently went to several doctors' appointments,
we do not find that he was so incapacitated that he was unable to
timely file his complaint. Moreover, based upon complainant's own
assertions, we note that he did not file the complaint upon his return
home from Honolulu in August 1999, but waited almost a year later to
file a complaint. Therefore, we find that complainant has not offered
sufficient justification for tolling or extending the time limitation
for filing a formal complaint.
Accordingly, the agency's decision to dismiss the complaint was proper
for the reasons set forth herein 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
February 23, 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.
2The agency noted that the decision was a �Correction to August 21,
2000 Letter�, wherein the agency had previously accepted the complaint.