0120120802
11-13-2012
Lennora Holmes, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lennora Holmes,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120802
Agency No. 2003529C2011102945
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 24, 2011,1 dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide at the Agency's Medical Center in Columbia, Missouri.
Complainant contacted an Agency EEO Counselor regarding a proposed suspension she was issued in April 2011. When the matter could not be resolved informally, the EEO Counselor sent Complainant a Notice of Right to File a Formal Complaint (Notice) that indicated that a formal complaint had to be filed within fifteen days of receipt of the Notice. The record establishes that Complainant received the Notice by UPS delivery on May 11, 2011. On May 28, 2011, two days beyond the 15-day filing period, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when she was issued a 15 day suspension on May 18, 2011 (the proposed suspension had been finalized).2
The Agency contacted Complainant and her non-attorney representative (Representative) regarding her delay in filing her formal complaint. The Representative responded that Complainant was not clear as to when she received the Notice. Further, he indicated that Complainant was experiencing a mental condition and was on medication, resulting in some difficulties with memory. The Agency informed the Representative that Complainant needed to provide documentation in support of her assertion that she was incapacitated and, specifically, a statement from her healthcare professional indicating that she was unable to process her complaint form. The Representative provided documentation on behalf of Complainant showing that she was experiencing significant depression and bouts of memory loss.
The Agency issued its final decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely filing her formal complaint. The Agency noted that Complainant received the Notice on May 11, 2011. As such, she needed to file her formal complaint on May 26, 2011. However, Complainant filed the formal complaint on May 28, 2011. Further, the Agency noted that the information provided by the Representative did not establish that Complainant was incapacitated from May 11-26, 2011. As such, the Agency did not find that Complainant provided sufficient reason to waive the 15-day filing period.
This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
In this case, the record establishes that Complainant filed her formal complaint two days beyond the requisite fifteen-day limitation period. On appeal, her Representative requests that the brief delay be excused because Complainant suffered from depression that interfered with her ability to properly tend to business like filing her complaint. He provided medical documentation to support his assertion.
29 C.F.R. � 1614.604(c) provides that the time limits in the EEO complaint process are subject to waiver, estoppels and equitable tolling. Complainant in this case has asserted that in late April 2011, she experienced symptoms of post-traumatic stress disorder (PTSD), depression and suicidal thoughts. As a result, she sought psychological services through the Agency's Employee Assistance Program. This was reported to her management and Complainant alleges she was told not to return to work until medically released. A medical report provided by Complainant indicates that she was diagnosed with Major Depressive Disorder and PTSD and, sometime in early May 2011, was prescribed medication for her psychological condition. The report indicates that Complainant experienced, among other symptoms, depression, lack of concentration and memory problems. Although Complainant's medical documentation does not explicitly establish that she was totally incapacitated between May 11-26, the filing period for her complaint, we find that the evidence of the seriousness of her medical condition during this time period and the briefness of her delay (two days) is sufficient justification to exercise our discretion to excuse the delay.
Accordingly, the Agency's final decision is REVERSED and the complaint is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims3 in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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 Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant 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 (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
November 13, 2012
__________________
Date
1 We note that Complainant received the Agency's dismissal decision on September 21, 2011.
2 Complainant also appears to have alleged that she was subjected to a hostile work environment. However, she did not elaborate on this claim, and it may be that she is simply asserting how she was harmed by the suspension (i.e., loss of wages and psychological injury).
3 In addition to the claim concerning the suspension, the Agency should, prior to commencing the investigation, clarify what hostile work environment claim, if any, Complainant is asserting.
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0120120802
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120802