01992476_r
01-03-2001
August Dos Santos, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
August Dos Santos v. Department of Veterans Affairs
01992476
January 3, 2001
.
August Dos Santos,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01992476
Agency No. 98-4077
DISMISSAL OF APPEAL
By Notice of Appeal postmarked January 21, 1999, complainant filed an
appeal with this Commission from the November 13, 1998 agency decision
dismissing his EEO complaint of unlawful employment discrimination.
A copy of the certified mail return receipt card reveals that the agency's
decision was received at complainant's address of record on November
19, 1998. A review of the FAD reveals that the agency properly advised
complainant that he had thirty (30) calendar days after receipt of its
final decision to file his appeal with the Commission. Therefore, we
find that complainant's appeal was filed beyond the 30 day time limit
set forth in 29 C.F.R. � 1614.402.
Complainant contends that his physical and mental condition prevents him
from attending to his personal affairs in a timely manner. Complainant
explains that he cannot �read with understanding or write coherently,�
and that he enlisted the help friends and physicians to help him write
an appeal statement. Complainant admits, however, that his condition
has improved over the past year, and that although �I am still not
functioning at a strong level . . . I am doing comparatively better.�
Complainant attached the statements of a physician, rehabilitation
counselor, and psychiatrist to support his claim of incapacity.
These professionals outlined complainant's long history of mental
and physical illness. The rehabilitation counselor, who has not seen
complainant in a professional capacity since the late 1980's, stated that
complainant �has periods of total incompetence and otherwise functions
at a very slow and deliberate fashion.� The psychiatrist, while noting
that complainant's �cognition� declined to the point where he could no
longer work in 1997, also stated that complainant's mental illness was in
remission, and that he has managed to control his symptoms over the past
year, engage in some outside contact with members of a religious group,
and maintain independent living status. None of the statements, letters,
and reports specifically identify complainant's capacity between the date
he received the agency's final decision and the date he filed his appeal.
Further, on appeal, complainant failed to explain his failure to timely
appeal the dismissal.
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). Claims of incapacity must be
supported by medical evidence of incapacity. See Crear v. United States
Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992) (complaints
of decreased mental and physical capacity, without medical evidence
of incapacity, does not warrant extension of time limits); cf. Maddux
v. United States Postal Service, EEOC Request No. 05980302 (Aug. 5, 1999)
(psychiatrist's statement that complainant's mental condition rendered
her unable to comprehend her legal rights and responsibilities during
the relevant time frame was found sufficient to justify extension of time
limit); Sohal v. United States Postal Service, EEOC Request No. 05970461
(Apr. 24, 1997) (psychiatrist's statement that complainant's severe
depression and anxiety rendered him unable to make decisions found
sufficient to justify extension). Evidence that a complainant has sought
treatment does not, without evidence of incapacity, justify an extension
of time. See Galbreath v. Navy, EEOC Request No. 05980927 (Nov. 4, 1999)
(evidence that complainant was under great mental stress, and received
an evaluation/treatment, did not render the complainant incapacitated).
Further, evidence that complainant was incapacitated in the past does not
imply a present incapacity to justify waiver of time limits. See Fontenot
v. United States Postal Service, EEOC Request No. 05990216 (June 4, 1999)
(evidence that incapacitated for part of applicable period does not
justify failure to file before or after period of incapacity); Steese
v. Equal Employment Opportunity Commission, EEOC Appeal No. 01996486
(April 27, 2000) (assuming incapacity in November 1998, complainant
still failed to justify untimeliness).
In the present case, complainant presented ample evidence of
past incapacity. However, as outlined by both complainant and his
psychiatrist, complainant has improved; he managed his symptoms and
lived independently during the past year. Complainant has not proven
an inability to attend to his legal affairs between November and
December 1998. Therefore, the Commission finds that complainant was
not incapacitated during the relevant time period.
Accordingly, complainant's appeal is DISMISSED as untimely filed pursuant
to 29 C.F.R. � 1614.403(c).
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
January 3, 2001
__________________
Date