01992740_r
12-01-1999
Nicole Bodden, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Nicole Bodden, )
Complainant, )
)
v. ) Appeal No. 01992740
Togo D. West, Jr., ) Agency No. 98-4793
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final
agency decision (FAD) concerning a 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. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.<1>
The final agency decision was dated January 29, 1999. The appeal
was postmarked February 16, 1999. Accordingly, the appeal is timely
(see, 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. �1614.402(a)), and is accepted
in accordance with EEOC Order No. 960, as amended.
The record indicates that on December 8, 1998, complainant initiated
contact with an EEO Counselor regarding her complaint of unlawful
employment discrimination. Informal efforts to resolve her concerns were
unsuccessful. On January 25, 1999, complainant filed a formal complaint,
alleging that she was the victim of unlawful employment discrimination
on the bases of race (black), disability (not specified), and sex
(female) when:
On December 23, 1998, complainant was reassigned to work at a lower
graded position in the Livermore Division, in contravention of her
doctor's instructions.
On January 29, 1999, the agency issued a final decision dismissing
complainant's complaint for failure to file a formal complaint in a
timely matter. Specifically, the agency found that complainant received a
Notice of Final Interview (Certified Mail # P 356 835 184) on January 7,
1999, which contained the rights to file a formal complaint, including
the time limits for exercising those rights. The agency noted that
in order for complainant's complainant to be timely it must have been
postmarked or delivered to the agency not later than January 22, 1999.
Thus, the agency concluded since complainant's formal complaint was
postmarked January 25, 1999, it was untimely.
On appeal, complainant argues that her appeal should not be denied simply
because it was four days late since she still suffers from the stress
of what happened to her in the past.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. �1614.107(a)(2)), provides that, an agency shall
dismiss a complaint which fails to comply with the applicable time
limits contained in Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. �1614.106). This provision requires
the filing of a formal complaint within fifteen (15) days of receiving
notice of the right to do so. 29 C.F.R. �1614.106(b).
In the present case, complainant received a Notice of Final Interview
(Certified Mail # P 356 835 184) on January 7, 1999, which contained
her rights to file a formal complaint, including the time limits for
exercising those rights. Therefore, complainant's complaint had to
be filed within fifteen calendar days of receipt of that notice. 29
C.F.R. �1614.106(b). A document shall be deemed timely if it is received
or postmarked before the expiration of the applicable filing period.
64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.604(b)). The subject complaint was postmarked January
25, 1999, beyond the requisite time frame for filing a timely complaint.
The time frame for filing may be extended, however, if considerations
of fairness so require. 29 C.F.R. �1614.604(c) (time limits subject
to waiver, estoppel, and equitable tolling). Complainant contends that
she still suffers from the stress of what happened to her in the past.
The Commission has held that a complainant's failure to meet the filing
deadline will be excused only if the complainant establishes that she
was so physically or emotionally incapacitated that she was unable to
make a timely filing. See Zelmer v. USPS, EEOC Request No. 05890164
(March 9, 1989) and Hedgepath v. USPS, EEOC Request No. 05940478
(January 6, 1995). We find, however, that the evidence presented in
the present case is insufficient to establish that complainant was so
incapacitated as to be unable to timely file her formal complaint.
Complainant failed to present any evidence to warrant an extension
of the applicable time limit. Therefore, the agency's final decision
dismissing the complaint for untimely filing is AFFIRMED.
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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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:
December 1, 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:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations 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.