01983488
11-18-1999
Grace E. Carey, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Grace E. Carey v. Department of Defense
01983488
November 18, 1999
Grace E. Carey, )
Complainant, )
)
v. ) Appeal No. 01983488
) Agency No. AG98001
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency) )
Agency. )
______________________________)
DECISION
On March 27, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> In her complaint,
complainant alleged that she was subjected to discrimination on the
basis of race (black) when a white applicant was preselected for a
program analyst position, GS-343-7, for which she was better qualified.
After complainant filed her formal complaint, the agency notified her
that it had not been filed within the time-frame specified under EEOC
Regulation 29 C.F.R. �1614.106(b), and requested an explanation. The
agency subsequently considered and rejected complainant's explanation
for her untimely filing, and dismissed her allegation pursuant
to EEOC Regulations for failure to comply with applicable time
limits. Specifically, the agency determined that because complainant's
letter containing her complaint was postmarked December 20, 1997,
one day after the filing period expired, her complaint was untimely.
The agency further stated that because complainant's explanation for her
untimely filing indicated her medical condition was not incapacitating,
an extension of the time limit due to a physical condition was not
warranted.
EEOC Regulation 29 C.F.R. �1614.106(b) requires that complainants
file their formal complaints of discrimination within 15 days of their
receipt of a notice of the right to file a discrimination complaint. This
time limit is subject to waiver, estoppel, or equitable tolling. 29
C.F.R. �1614.604(c). Pursuant to 64 Fed. Reg. 37644, 37656 (1999)
(to be codified as 29 C.F.R. �1614.107(b)), an agency shall dismiss a
complaint which was not filed within the 15-day time period.
Here, the record reflects that complainant received her notice of right
to file a complaint on December 4, 1997. Complainant therefore had until
December 19, 1997, to timely file her formal complaint. The record
indicates that the subject complaint was postmarked December 20, 1997.
Volume 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.604(b)) provides that a document shall
be deemed timely if it is received or postmarked before the expiration
of the applicable filing period. As the postmark on complainant's filing
was beyond the fifteen-day time limitation, her complaint was untimely.
Moreover, the Commission finds that complainant failed to submit
adequate justification for extending the time for filing beyond the
regulatory period. In the present case, complainant contends that she
had a physical condition, specifically a broken tailbone, which made her
"depend on others to take [her] places." 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 her condition that she 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); Weinberger v. Department of the Army,
EEOC Request No. 05920040 (February 21, 1992); Hickman v. Department
of the Navy, EEOC Request No. 05910707 (September 30, 1991); Johnson
v. Department of Health and Human Services, EEOC Request No. 05900873
(October 5, 1990); and Zelmer v. United States Postal Service, EEOC
Request No. 05890164 (March 8, 1989). Because the evidence does not
support that complainant was so incapacitated as to have been unable to
pursue her EEO complaint in a more timely manner, we find no basis for
tolling the time limit for filing her complaint.
Accordingly, the agency's decision dismissing complainant's formal
complaint as untimely is hereby AFFIRMED for the reasons set forth above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405) 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(b). 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).
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
November 18, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulation 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.