01981014
01-05-1999
Stephen J. Henry, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Stephen J. Henry v. Department of the Army
01981014
January 5, 1999
Stephen J. Henry, )
Appellant, )
) Appeal No. 01981014
v. ) Agency No. BQECF09708H0250
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On November 10, 1997, Stephen J. Henry (hereinafter referred to as
appellant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from a final decision of the agency concerning his
complaint of discrimination in violation of �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The final agency decision
was dated October 24, 1997. Accordingly, the appeal is timely, and
is accepted in accordance with the provisions of EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that he failed to timely contact an EEO
Counselor.
BACKGROUND
Appellant contacted an EEO Counselor on February 26, 1997, and
subsequently filed a formal complaint alleging that he was discriminated
against on the basis of his disability (depression) when he was harassed
by his supervisor from approximately January 1994 through January 1995.
Appellant advised the EEO Counselor that he did not initiate a complaint
at that time because he experienced a nervous breakdown, was hospitalized,
and was unable to function. Nevertheless, appellant stated that he felt
threatened and intimidated by the supervisor beginning in October 1994.
On October 24, 1997, the agency issued a final decision, dismissing
appellant's complaint on the grounds that he failed to timely contact
an EEO Counselor. The agency noted that appellant filed a claim with
the Office of Workers' Compensation Programs (OWCP) in February 1995,
and that appellant's attorney specifically advised OWCP that appellant
had not filed an EEO complaint in May 1995.<1> In addition, the agency
stated that appellant filed for disability retirement, which was approved
by the Office of Personnel Management (OPM) in January 1996. Thus,
the agency rejected appellant's assertion that he was unable to handle
his affairs during the period from January 1995 through February 1997.
It is from this decision that appellant now appeals.
The record includes a statement from appellant's union representative,
indicating that appellant told her, in January 1995, that he felt
his supervisor was setting him up for an EEO complaint. It is noted
that appellant gave his wife power of attorney at the time of his
hospitalization, but later revoked the power of attorney in August 1995.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of an
alleged discriminatory personnel action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the limitation period is triggered under
the EEOC Regulations. See, 29 C.F.R. �1614.105(a)(2); Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Nevertheless, the limitation
period is subject to waiver, estoppel, and equitable tolling. See 29
C.F.R. �1614.604(c).
In the case at hand, appellant asserted that he was unable to initiate an
EEO complaint prior to February 1997. The Commission notes that appellant
was hospitalized in January and February 1995. Thus, the limitations
period should have been tolled during that time. Ostrenga v. Department
of Veterans Affairs, EEOC Request No. 05890060 (May 22, 1989). However,
in order for appellant's complaint to be considered timely, he would have
to show that from March 1995 through February 1997, he was incompetent and
incapable of handling his own affairs. Speiser v. Department of Health &
Human Services, 43 FEP Cases 1363 (D.C. Cir. 1986). It is noted that
appellant was able to file a claim with OWCP and file for disability
retirement during the period in question. Further, appellant revoked
the power of attorney given to his wife in August 1995. Thus, the record
does not support a finding that appellant was incapable of handling his
affairs beyond that time, and, based upon a review of the record in this
case, we find that appellant has failed to submit adequate justification
for extending the applicable limitation period until 1997. Accordingly,
the agency's decision to dismiss appellant's complaint for failure to
seek EEO counseling in a timely manner 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. �l6l4.604(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. 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 (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:
JAN 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The record includes a copy of appellant's OWCP claim, in which he
references a stressful work environment due to the harassment of his
supervisor. The record also contains a copy of the attorney's May 26,
1995 letter, indicating that while appellant felt his supervisor had
been harassing him, he had not filed an EEO complaint.