01984358
06-21-1999
Alvan G. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alvan G. Brown v. United States Postal Service
01984358
June 21, 1999
Alvan G. Brown, )
Appellant, )
)
v. )
) Appeal No. 01984358
William J. Henderson, ) Agency No. 1-J-608-0024-97
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) dated April 17, 1998 dismissing his complaint (sexual
harassment) on the ground that appellant failed to timely contact an
EEO Counselor.
The record indicates that appellant contacted the EEO Office on May
2, 1997. He alleged that he was discriminated against based on his sex
(male), when between August and September 1996, he was sexually harassed
by his supervisor. In its FAD, the agency dismissed appellant's complaint
on the ground that his May 2, 1997 contact was untimely. The FAD also
noted that EEO posters including the 45-day time limit were clearly on
display.
On appeal appellant submitted a letter dated May 28, 1998 from his
psychiatrist indicating that appellant was unable to comply with the time
limits because he was incapacitated by his mental illness, a delusional
disorder and a depressive disorder. The psychiatrist also noted that
she did not initially examine appellant until four months after the
time he should have contacted an EEO Counselor, but that she believes
his illness affected his thinking and decision-making skills during the
earlier period.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of action.
A review of the record reveals that the alleged incident occurred between
August and September of 1996. Appellant did not contact the counselor
until May 1997, some eight months later. The Commission finds appellant's
contact to be untimely.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the agency or the
Commission to extend the 45-day time limit when the individual can
establish that he or she was not notified of the time limits and was
not otherwise aware of them, that he or she did not know and reasonably
should not have known that the discriminatory matter or personnel
action occurred, that despite due diligence he or she was prevented by
circumstances beyond his or her control from contacting the counselor
within the time limits, or for other reasons considered sufficient by
the agency or the Commission.
In certain limited cases the Commission has equitably tolled the time
limitations due to an appellant's medical condition. We have held
that hospitalization may be a circumstance beyond appellant's control
which warrants a time extension. See Ostrenga v. Department of Veterans
Affairs, EEOC Request No. 05890060 (May 22, 1989). However, an extension
is only warranted where an individual is so incapacitated by his condition
that he is unable to meet the regulatory time limits. See Crear v. USPS,
EEOC Request No. 05920700 (October 29, 1992); Zelmer v. USPS, EEOC
Request No. 05890164 (March 8, 1989). In addition, the Commission has
held that evidence that an individual is under a physician's care is
not dispositive of the issue of whether the employee is incapacitated.
See Hemphill v. Department of Defense (Defense Investigative Service),
EEOC Request No. 05930342 (September 17, 1993).
Where a psychologist has indicated that a complainant had severe
depression, but did not indicate a specific opinion regarding whether
the depression caused the complainant's inability to timely contact the
counselor, the Commission found the evidence to be insufficient to extend
the time limit. See Sohal v. USPS, EEOC Request No.05970461 (April
24, 1997). In the instant case, although the appellant's psychiatrist
did state a specific opinion regarding compliance with the time limits,
it was regarding a time period when the appellant was not under the
psychiatrist's care. Therefore, we do not find the evidence to be
sufficiently persuasive to toll the time period for counselor contact.
Moreover, the record does not suggest that appellant was hospitalized
or receiving treatment during the 45-day time period. The Commission
finds that the appellant has not presented sufficient justification for
equitably tolling or waiving the time limitations based on his mental
condition. See 29 C.F.R. �1614.105(a)(2).
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint on
the grounds of untimely counselor contact was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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 (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:
June 21, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations