01A41478_r
04-15-2004
Jean R. Sharpe, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jean R. Sharpe v. Department of Veterans Affairs
01A41478
April 15, 2004
.
Jean R. Sharpe,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A41478
Agency No. 200P-0605-2003100026
DECISION
Complainant filed an appeal with this Commission from a final
agency decision pertaining to her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On October 1, 2002, complainant contacted the EEO office regarding claims
of discriminatory harassment. Informal efforts to resolve complainant's
concerns were unsuccessful. On August 27, 2003, complainant filed a
formal complaint based on disability.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The complaint was also dismissed on the grounds that
it was untimely filed. The agency reasoned that complainant received the
Notice of Right to File Discrimination Complaint (hereinafter "Notice")
on November 12, 2002, but did not file the formal complaint until August
27, 2003.
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.
The record contains a copy of a Domestic Return Receipt showing that
complainant received the Notice on November 12, 2002. The Notice informed
complainant that she 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 her complaint within fifteen days of her
receipt of the Notice but instead filed the complaint months later,
in August 2003.
While the complaint form itself is dated November 14, 2002, complainant's
attached letter is dated August 25, 2003.<1> In the letter, complainant
acknowledges that she "filed late.� However, complainant contends
that she was "in a deranged mental state and it took a while for me
to concentrate and for the medication to work." The medical documents
provided by complainant, however, do not cover the relevant time period.
Moreover, the documentation only indicates that she suffered from
depression, and that her "prognosis is fair to good." 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). The instant record does not show that
complainant was so incapacitated and the time she received that Notice
that she was unable to meet the fifteen-day time limitation. Therefore,
we find that the agency's decision to dismiss the complaint as untimely
filed was proper.
Accordingly, the agency's decision is hereby AFFIRMED.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 15, 2004
__________________
Date
1The record does not appear to include a copy
of a postmark for the filing of the formal complaint.