01A21355_r
03-11-2002
Susan C. Clem, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Susan C. Clem v. United States Postal Service
01A21355
March 11, 2002
.
Susan C. Clem,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21355
Agency No. 4-G-752-0340-01
DECISION
Complainant appealed to this Commission from the agency's dismissal
of her employment discrimination complaints. In its dismissal, the
agency consolidated numerous complaints filed by complainant, including
Agency Numbers 4-G-752-0358- 01, 4-G-752-0377-01, 4-G-752-0394-01,
4-G-752-0410-01, 4-G-752-0446-01, and 4-G-752-0466-01.<1> In her
complaints, complainant alleged discrimination on the bases of race
(Caucasian), sex (female), and in reprisal for prior EEO activity when
on March 13, 15, and 20, April 3, 4, and 6, and May 16, 2001:
Complainant learned that a limited duty carrier was reporting earlier
than her;
Complainant was escorted out of the Post Office;
Complainant was stalked, intimidated and denied union business;
Complainant was harassed;
Management created a hostile work environment and allowed crossing
of crafts;
Limited duty co-workers were allowed to have a schedule change to be
available for overtime; and
Complainant was issued a seven-day suspension and sent for a
fitness-for-duty examination.
The agency dismissed the consolidated complaint for failure to file her
formal complaint in a timely manner. The agency found that complainant
received notice of the right to file a formal complaint on June 26,
2001, but failed to file her formal complaint until September 11, 2001.
On appeal, complainant, through her representative, argues that she did
not receive the notices until September 11, 2001, when she returned
to duty. In its response, the agency notes that complainant signed
certified receipt cards on June 29, 2001, addressed to complainant's
post office box.
Complainant also submitted a copy of the psychiatrist's report from her
fitness for duty examination, conducted May 16, 2001. The psychiatrist
described complainant as, �so disturbed that she cannot communicate in
a coherent and meaningful manner. . . . [Complainant] is not fit for
duty . . . [and] is nonfunctional.� Complainant was out of work until
June 12, 2001. On the first day she was cleared to return to work,
she again was instructed to stay off work by her personal psychiatrist.
Complainant returned to work again on June 26, 2001, but was placed off
the clock by the agency on July 6, 2001. Complainant did not return to
duty until September 11, 2001.
Complainants must file their formal complaints within fifteen (15) days of
receiving the right to do so. See 29 C.F.R. � 1614.106. The regulations
require the dismissal of claims that fail to comply with this time limit.
See 29 C.F.R. � 1614.107(a)(2). For timeliness purposes, complainant's
formal complaint was considered filed on the date of its postmark.
See 29 C.F.R. � 1614.604(b).
The record reveals that complainant received notice of the right to
file her complaint on June 26, 2001, but failed to mail her formal
complaint until September 11, 2001. The record indicates, however,
that complainant was so incapacitated as to warrant an extension of the
applicable time frame. See Davis v. United States Postal Service, EEOC
Request No. 05980475 (August 6, 1998) (in cases involving physical or
mental health difficulties, an extension is warranted where an individual
is so incapacitated by her condition that she is unable to meet the
time limits); Maddux v. United States Postal Service, EEOC Request
No. 05980302 (Aug. 5, 1999) (psychiatrist's statement that complainant's
mental condition rendered her unable to comprehend her legal rights and
responsibilities during the relevant time frame was found sufficient to
justify extension of time limit); Sohal v. United States Postal Service,
EEOC Request No. 05970461 (Apr. 24, 1997) (psychiatrist's statement that
complainant's severe depression and anxiety rendered him unable to make
decisions found sufficient to justify extension).
The evidence suggests that complainant was functional on September 11,
2001. Given the medical evidence submitted on appeal, the Commission
finds that complainant was not capable of meeting the applicable
time limits prior to that date. Therefore, the agency's dismissal
was improper.
CONCLUSION
Accordingly, the agency's dismissal is reversed, and the complaint is
remanded for further processing.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (K0501)
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 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 (M0701)
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), 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 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. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 11, 2002
__________________
Date
1The agency identified the consolidated complaint as Agency Number
4-G-752-0340-01.