August Dos Santos, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 3, 2001
01992476_r (E.E.O.C. Jan. 3, 2001)

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