01A04611
11-08-2000
Virginia C. Brigham, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Virginia C. Brigham v. Veterans Affairs
01A04611
November 8, 2000
.
Virginia C. Brigham,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04611
Agency No. 99-5042
DECISION
On May 30, 2000, complainant filed a timely appeal with this Commission
from an 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.<1>
The Commission accepts the appeal in accordance with 29 C.F.R. �1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on physical disability. Informal efforts to resolve complainant's
concerns were unsuccessful. On November 8, 1999, complainant filed a
formal complaint.
On May 19, 2000, the agency issued a decision dismissing the complaint
on the grounds that it was untimely filed. Specifically, the agency
determined that a Notice of Right to File a Discrimination Complaint
(�Notice�) was sent and received by complainant on June 23, 1999; that
on August 11, 1999, complainant called the agency to check the status of
her case, indicating that she had not received the Notice; that another
complaint form was sent and received by complainant on September 9, 1999;
and that complainant did not file a formal complaint until November
8, 1999. Moreover, the agency noted that in her complaint letter
complainant acknowledged the untimeliness and alluded to medical problems.
According to the agency, it requested more information from complainant
with respect to the delayed filing, but did not receive a response.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a
complaint that fails to comply with the applicable time limits contained
in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends
the time limits in accordance with � 1614.604(c).
In the instant case, the record contains a copy of a Domestic Return
Receipt showing that complainant signed for and received the Notice
on June 23, 1999. The Notice informed complainant that she had
fifteen days from the date of receipt of the Notice in which to file a
formal complaint. Complainant did not file a complaint at that time.
The record further reflects that complainant received another letter
on September 9, 1999, along with another complaint form, noting that a
Notice had previously been sent and signed for on June 23, 1999. It was
not until November 8, 1999, well beyond the 15-day time limitation, that
complainant filed the formal complaint. In her complaint, complainant
admits that she �maybe [sic] over the time limit ....�
We note that in her complaint letter, complainant also alludes to health
problems related to stress, wherein her doctor ordered an �extended
trip to her hometown....� The Commission has 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, complainant has failed to show that she was
so incapacitated. Moreover, on appeal, complainant indicates that during
the relevant time she had been �deeply concerned� about the health of a
close friend. Again, she has not demonstrated how her friend's health
prevented her from meeting the 15-day time limitation. Therefore,
we find that complainant has failed to present adequate justification,
pursuant to 29 C.F.R. � 1614.604(c) for extending the filing period.
Accordingly, the agency's decision dismissing the complaint was proper
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
November 8, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.