Josefina L. Placedes, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionJul 17, 2001
05A01077 (E.E.O.C. Jul. 17, 2001)

05A01077

07-17-2001

Josefina L. Placedes, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


Josefina L. Placedes v. Department of Defense

05A01077

July 17, 2001

.

Josefina L. Placedes,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Request No. 05A01077

Appeal No. 01A03114

Agency No. W0004

DECISION ON REQUEST FOR RECONSIDERATION

On August 2, 2000, the Department of Defense (agency) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Josefina L. Placedes v. Department of

Defense, EEOC Appeal No. 01A03114 (July 12, 2000). EEOC regulations

provide that the Commissioners may, in their discretion, reconsider

any previous Commission decision. 29 C.F.R. � 1614.405(b). The party

requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following two criteria:

the appellate decision involved a clearly erroneous interpretation of

material fact or law; or the decision will have a substantial impact on

the policies, practices or operations of the agency.

The issue in this case is whether the agency properly dismissed

complainant's EEO complaint for untimely EEO contact and for failure to

file the formal complaint in a timely manner. As the previous decision

discussed, the alleged discriminatory events occurred from 1991-1993.

Complainant contacted an EEO Counselor on July 7, 1995. On October 4,

1995, she received a notice of her right to file a formal EEO complaint.

On December 23, 1999, complainant filed her formal complaint. The

previous decision reversed the agency's dismissal based on a December

1999 letter submitted by complainant's Psychologist. In the letter,

the Psychologist indicated that since January 4, 1994, complainant had

been under her care for serious emotional illness and had been mentally

unable to file the necessary EEO paperwork in a timely manner or to act

in her own best interest during the relevant time period.

In its request for reconsideration, the agency emphasizes that in March

1998, complainant was cleared by her psychologist to return to work for

several hours a day despite her emotional difficulties. In her response,

complainant submits no specific rebuttal to this argument. Rather,

complainant argues, generally, that the agency's discriminatory actions

rendered her so emotionally and physically disabled that she was unable

to meet time deadlines in her EEO complaint.

The Commission has consistently held that the failure to meet an EEO

filing deadline will be excused only if the complainant establishes she

was so physically or emotionally incapacitated that she was unable to

meet the regulatory time limitations. Crear v. U.S. Postal Service, EEOC

Request No. 05920700 (October 29, 1992); Zelmer v. U.S. Postal Service,

EEOC Request No. 05890164 (March 8, 1989). After carefully considering

the agency's arguments herein and upon reconsideration of the record,

we find that complainant has not shown that she was so incapacitated by

her conditions as to render her unable to file her formal EEO complaint

prior to December 23, 1999. We find that complainant's arguments for

waiving the time limitation are seriously undermined by the fact that

she was cleared to return to work almost two years before she filed

her formal complaint. Having made this finding, there is no need to

address the issue of the timeliness of complainant's request for EEO

counseling. Accordingly, the Commission finds that the request meets

the criteria of 29 C.F.R. � 1614.405(b) and it is the decision of the

Commission to GRANT the agency's request. The decision of the Commission

in EEOC Appeal No. 01A03114 is REVERSED and the agency's dismissal of the

complaint is hereby AFFIRMED. There is no further right of administrative

appeal on the decision of the Commission on this Request to Reconsider.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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:

July 17, 2001

_________________________

Frances M. Hart

Executive Officer

Executive Secretariat

______________________

Date