Susan C. Clem, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 11, 2002
01A21355_r (E.E.O.C. Mar. 11, 2002)

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.