05981170
09-30-1999
Linda A. Jones, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Linda A. Jones v. Department of Veterans Affairs
05981170
September 30, 1999
Linda A. Jones, )
Appellant, )
)
v. ) Request No. 05981170
) Appeal No. 01975690
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On September 18, 1998, Linda A. Jones, (hereinafter referred to as
the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in Linda
A. Jones v. Department of Veterans Affairs, EEOC Appeal No. 01975690
(August 20, 1998). EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision. 29
C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence that tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is GRANTED.
ISSUE PRESENTED
Whether the previous decision properly dismissed appellant's appeal as
untimely and whether the agency properly dismissed appellant's complaint
for failure to contact an EEO counselor in a timely manner.
BACKGROUND
The previous decision herein found appellant's appeal, postmarked July
10, 1997 to be untimely. That decision noted that appellant indicated in
her appeal statement that she had received the agency's final decision
(FAD) on May 22, 1997. Appellant's appeal package contained a copy of the
final agency decision, an original notice of appeal dated June 2, 1997,
the EEO Counselor's report, medical documentation concerning her mental
impairments of major depression and paranoid schizophrenia, identical
appeal letters addressed to the agency and to the Office of Federal
Operations (OFO),<1> and a letter from the agency dated July 1, 1997 which
forwarded the other documents back to appellant. In the agency's letter,
it states that it received the other documents from appellant on June 23,
1997 and advises appellant to file her appeal with OFO.
The agency's May 19, 1997 FAD in this matter dismissed appellant's
July 23, 1996 formal EEO complaint of harassment and removal from
the agency for failure to discuss the issues in her complaint with an
EEO Counselor and for failure to contact an EEO Counselor in a timely
manner. Specifically, the agency noted that in her formal EEO complaint,
appellant raised the matter of the agency's alleged harassment of
her in the workplace and her February 22, 1996 removal<2> from her
position as a housekeeping aide based on her race, color (black) and
mental disability. The agency explained that while appellant contacted
an EEO counselor on July 17, 1996, that counselor could not assist her
because of a conflict of interest and directed her to other individuals
whom appellant failed to contact. The agency further noted that it mailed
appellant letters on August 15 and 16th, respectively, requesting that she
submit objective evidence to support any claim for compensatory damages
she might intend to raise and that appellant ultimately responded in an
undated letter which merely stated she was "sick" in July/August.<3>
The agency found that since there was no evidence that appellant was
hospitalized on the date of her resignation or in July/August 1997,
then there was insufficient basis for appellant's untimely EEO counselor
contact.
The medical documentation appellant submitted with her appeal from various
physicians indicates that from December 27, 1994 until at least January of
1997, appellant was experiencing significant psychological problems, which
included diagnosis of a recurrent major depressive episode, psychosis, and
schizophrenia, paranoid type, chronic, respectively. The psychologist who
treated appellant until March 30, 1996 indicated that due to her mental
incapacity, she was incapable of following through on contacting the
proper persons at her place of employment for the purpose of filing an
EEO complaint. In an EEO Counselor's report submitted by appellant,<4>
the EEO Counselor indicates that she spoke with several of appellant's
coworkers who corroborated that due to her lapses in judgement and a
limited comprehension of events caused by her depression, appellant
failed to file her complaint in a timely manner.
In her request for reconsideration, appellant asserts that the Commission
should review the documents already submitted and asks for reconsideration
based upon her medical problems, hospitalization and recuperation time
which caused forgetfulness. She submits discharge papers from a recent
hospital stay in October 1998. In response, the agency argues generally
that appellant has not submitted sufficient justification to warrant
reconsideration.
ANALYSIS AND FINDINGS
After a review of the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
appellant's request meets the criteria of 29 C.F.R. �1614.407(c)(2),
and it is the decision of the Commission to GRANT the request. While
appellant's request fails to raise new and material evidence, or an
issue with precedential implications, it references medical and other
documentation previously submitted on appeal and discussed above which
the previous decision did not, in any respect, address therein.
The Commission has held that where proper appeal rights have been given,
an appeal is untimely filed where the appeal is mailed to the wrong
office, even if it would have been timely filed if mailed directly
to the Commission. See Henry v. Department of Veterans Affairs, EEOC
Request No. 05901116 (November 30, 1990). In several recent cases,
however, the Commission has allowed exceptions to the Henry rule, where
it was evident that the appellant was earnestly attempting to preserve
his appeal rights. See Rodriguez v. Department of the Air Force, EEOC
Request No. 05940933 (June 2, 1995) (confused appellant mailed appeal
within the limitations period to an EEOC District Office); Thompson
v. Department of the Army, EEOC Appeal No. 05940588 (February 24, 1995)
(confused appellant timely filed appeal with agency's EEO Office);
Orr v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,
1994) (appeal filed with agency EEO Office, but agency failed to promptly
forward the appeal to the Commission).
We find that appellant attempted to preserve her appeal rights in a
timely fashion when she initially mailed her appeal to the agency. For
example, two copies of the appeal statement, one for the agency and
one for OFO were apparently mailed to the agency within thirty days of
appellant's receipt of the FAD.<5> Without undue delay after the receipt
of the agency's response directing appellant to file the appeal with
OFO, appellant transmitted her appeal to the Commission. Moreover,
both the medical documentation and the underlying manner in which
the documents were submitted to the agency, as well as the tenor of
appellant's statements on appeal, indicate her confusion. Under these
circumstances, the Commission exercises its discretion to accept the
appeal as timely. We now turn to the merits of appellant's appeal.
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 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).
Upon review of all of appellant's medical documentation, the EEO
Counselor's report, and the tenor of the various correspondence submitted
by appellant in this matter, we are persuaded that sufficient evidence
exists documenting appellant's serious mental incapacity during the
time period between her April 1996 resignation and her July 1996 EEO
Counselor contact and later contacts with the agency to warrant remanding
appellant's EEO complaint for continued processing by the agency. Since
this is our first decision on the merits of the appeal, reconsideration
rights are afforded to the parties below.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c)(2), and it is the
decision of the Commission to GRANT this request. The decision of the
Commission in EEOC Appeal No. 01975690 and the agency's FAD are REVERSED.
The agency is directed to comply with the Order of the Commission set
forth below. There is no further right of administrative appeal from
that portion of our decision pertaining to the timeliness of appellant's
appeal of the agency's final decision.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File a Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. a civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
With regard to that portion of our decision pertaining to the agency's
dismissal of allegation (b), 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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
Sept. 30, 1999
___________________ _____________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1These letters are dated June 2, 1997 and briefly state that the forms
she was sending would explain her lapse of judgement in failing to respond
through proper channels.
2Appellant alleged that she had submitted her resignation on April 30,
1996 while mentally incapable of making such a determination.
3In her EEO complaint, appellant indicated that she had been hospitalized
from May 9-22, 1996, after having a nervous breakdown.
4This April 10, 1997 document is not contained in the file forwarded by
the agency to the Commission.
5We note that the FAD lists both the agency and OFO addresses in bold
type within a sentence of each other on the document.