01A34528_r
10-30-2003
Debra L. Plummer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Debra L. Plummer v. United States Postal Service
01A34528
October 30, 2003
.
Debra L. Plummer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34528
Agency No. 1J-531-0064-03
DECISION
The Commission finds that the instant complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds that complainant
failed to timely file a complaint. The record contains a notice of
right to file individual complaint that was received by complainant on
May 1, 2003. The notice states that if a complaint is filed, it must be
filed within fifteen days after receipt of the notice. On May 19, 2003,
complainant hand-delivered an EEO complaint wherein she claimed that she
was discriminated against on the bases of her disability (unspecified),
race (Black), and sex (female) when from November 30, 2002 - January 17,
2003, she was removed from working in the Periodical Office and adverse
actions were taken against her.
The agency dismissed the complaint on the grounds that complainant failed
to file the complaint in a timely manner. The agency determined that
complainant's complaint was not received within the 15-day filing period.
The agency noted that complainant received the notice of right to file
an individual complaint on May 1, 2003, but did not file her complaint
until May 19, 2003.
On appeal, complainant contends that she was unable to file her
complaint in a timely manner because she was incapacitated during the
15-day filing period. In support of her position, complainant submits
documentation from her physician. The documentation indicates that
complainant was unable to work from April 28, 2003 - June 2, 2003.
Complainant was diagnosed as suffering from carpal tunnel syndrome,
rotator cuff syndrome, and volar wrist ganglion.
Upon review of the record, we observe that the record contains the
notice of right to file individual complaint cited by the agency.
The notice was received by complainant on May 1, 2003. Complainant did
not file her complaint until May 19, 2003, after the expiration of
the 15-day limitation period. The Commission has consistently held,
in cases involving physical or mental health difficulties, that an
extension is warranted only where an individual is so incapacitated by
her condition that she is unable to meet the regulatory time limits.
See Davis v. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 2002). We find that the medical evidence
presented by complainant is not sufficient to establish that complainant
was so incapacitated as to be unable to file her formal complaint in a
timely manner. Accordingly, the agency's dismissal of the complaint on
the grounds of untimeliness was proper and is AFFIRMED.
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
October 30, 2003
__________________
Date