01983853_r
05-17-1999
Gail A. Fennell, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Gail A. Fennell, )
Appellant, )
) Appeal No. 01983853
v. ) Agency No. 12-98-009
)
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
)
DECISION
On April 24, 1998, appellant filed a timely appeal of a March 20,
1998 final agency decision, received by her on March 28, 1998. Therein,
the agency dismissed 2 of 4 allegations of her complaint for failure to
contact an EEO Counselor in a timely manner.
In its final decision, the agency accepted allegations 1 and 2 and
dismissed allegations 3 and 4 of appellant's December 4, 1997 complaint.
Dismissed allegations 3 and 4 were identified in the final decision as
whether appellant was discriminated against on the bases of her disability
(intermittent back problems) and in retaliation for a prior EEO complaint
when: 3. in July 1997, appellant was placed on AWOL [absence without
leave]; and 4. on July 25, 1997, appellant received a written reprimand
for insubordination for failure to perform tasks and duties as assigned.
In dismissing allegations 3 and 4, the agency noted that appellant did
not initiate EEO Counselor contact until October 29, 1997, regarding
the alleged discriminatory events that occurred in July 1997, and,
accordingly, the agency determined that appellant's contact was beyond
the 45 days required for timely contact.
On appeal, appellant asserts that she did not contact an EEO Counselor
until October 1997, because she was "extremely ill." Appellant asserts
that she had severe and chronic back pain, had to have epidural blocks,
underwent physical therapy, walked with a limp and was experiencing
problems with balance and equilibrium.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent.
Upon review, we find that the agency's dismissal was proper. Appellant
does not argue, and the Counselor's Report reveals, that appellant did not
initiate Counselor contact until October 29, 1997. Appellant also does
not argue that she was unaware of the time limits. The record reveals,
and we find, that appellant was advised in a July 14, 1997 letter that
she was being placed in an absence without leave status. We find that
appellant had notice of the letter by July 15, 1997, and that appellant
received notice of the reprimand on July 25, 1997. Therefore, appellant's
contact on October 29, 1997, regarding allegations 3 and 4 was untimely.
Moreover, appellant has not provided justification sufficient to extend
the time limit.
We are not persuaded by appellant's contention on appeal that her
untimeliness should be excused because she was extremely ill. Appellant
herself stated on appeal that agency officials were apprised and briefed
daily about her health status. E-mail messages from appellant to the
agency and appellant's handwritten notes reveal that she was at work on
July 21, 22, and 23, and 28, 1997. A July 28, 1997 e-mail message from
appellant and a July 30, 1997 letter from appellant to a neurological
surgeon indicate that she was back at work. The record also indicates
that appellant was able to write and call her office and her physicians
and attend medical appointments and that on July 25, 1997, she was
scheduled for physical therapy twice weekly. The medical reports state
that appellant had disc degeneration and herniation. 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 the condition that the individual is unable to
meet the regulatory time limits. See 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). Based on the foregoing,
we do not find that appellant was so incapacitated that she was unable
to make timely EEO contact.
Consistent with our discussion, the agency's dismissal of allegations
3 and 4 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:
May 17, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations