01980811
10-27-1998
Pamela R. Varga, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Pamela R. Varga, )
Appellant, )
)
v. ) Appeal No. 01980811
) Agency No. DFAS-DE-DENV-97-042
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance & Accounting )
Service), )
Agency. )
)
DECISION
On November 3, 1997, appellant filed a timely appeal with this Commission
from an October 17, 1997 final agency decision. Appellant's complaint
was dismissed as untimely.
In dismissing appellant's complaint, dated August 7, 1997, the agency
noted in its final decision that appellant acknowledged receipt of a
notice of final interview on July 21, 1997, that the notice informed
appellant that she had 15 days to file her complaint and that if she
failed to file her complaint in a timely manner, her complaint would
be dismissed. The agency also noted that appellant had until August 5,
1997, to file her complaint. Because her complaint was not postmarked
until August 15, 1997, the complaint was untimely. The agency noted
that appellant failed to provide justification sufficient to extend the
time limit.
EEOC Regulation 29 C.F.R. �1614.106(b) provides that a formal complaint
must be filed within 15 days of the receipt of the notice required
by �1614.105 (d), (e) or (f). EEOC Regulation 29 C.F.R. �1614.107(b)
provides that the agency shall dismiss a complaint or a portion of a
complaint that fails to comply with the applicable time limits contained
in �1614.106. The time limits are subject to waiver, estoppel and
equitable tolling pursuant to 29 C.F.R. �1614.604(c). EEOC Regulation
29 C.F.R. �1614.604(b) provides that a document shall be deemed timely
if it is delivered in person or postmarked before the expiration of the
applicable filing period.
Upon review, we agree with the agency's decision. The record contains a
July 19, 1997 notice of final interview which advised appellant that she
had 15 calendar days from receipt of the notice to file her complaint
or her complaint would be dismissed for untimeliness. Appellant does
not dispute that she received the notice on July 21, 1997. Therefore,
appellant had until August 5, 1997, to file her complaint. A copy of an
envelope in the record indicates that appellant's complaint was postmarked
August 15, 1997. Accordingly, appellant's complaint was untimely filed.
Although appellant, through counsel, notes on appeal that she mailed
her complaint on August 8, 1997; use of that date would not render the
complaint timely.
Appellant also asserts on appeal that she sought assistance from the
EEO Counselor and the agency's legal office regarding the filing of her
complaint and she was advised that a few days would not matter because
the formal complaint would go through the EEO Counselor and then to
the agency's EEO Officer. The record contains an affidavit of the EEO
Counselor wherein the EEO Counselor stated that she saw appellant in the
agency on August 5, 1997, and reminded her that her complaint was due
that day. She stated that appellant told her that she was aware that her
complaint was due and that she would deliver her complaint after a meeting
with the Human Resources Office. Appellant did not do so. The EEO
Counselor also noted in her affidavit that she had previously informed
appellant of the filing deadlines. The EEO Counselor further stated
that she spoke with appellant a few days after August 5, 1997, and that
appellant stated that she knew her complaint was late and wanted to know
if she could still submit it. Appellant did not provide any reason for
the delay in filing. The EEO Counselor informed appellant that she could
file her complaint and that it would be processed through the agency's
EEO Officer and the legal office for a determination on timeliness.
The EEO Counselor denied ever telling appellant that she could file her
complaint at any time or that her complaint would be accepted if it was
submitted a few days late. The record also contains the affidavit of
the Personnel Management Specialist and she denied providing appellant
with any advice regarding the filing of her complaint or EEO filing
deadlines when she met with her.
It also appears that appellant may be contending on appeal that the time
limit should be extended because of physical illness. Appellant notes
on appeal that she underwent surgery in September 1997. In Zelmer
v. U.S. Postal Service, EEOC Request No. 058990164 (March 8, 1989),
the Commission held that a complainant's failure to meet a filing
deadline will be excused only if the complainant establishes that he or
she was so physically or emotionally incapacitated that he or she was
unable to make a timely filing. The same is true regarding claims of
incapacity related to psychiatric or psychological conditions. See Crear
v. U.S. Postal Service, EEOC Request No. 05920700 (October 29, 1992).
Appellant has not demonstrated, and the medical records do not disclose,
that appellant was so incapacitated that she was unable to file her
complaint in a timely manner.
Having found that appellant's complaint was untimely filed and having
also found that appellant has not provided sufficient justification to
extend the time limit, we find that the agency's dismissal was proper.
Consequently, the agency's final decision 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. �1614.604(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:
Oct. 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations