01983845
06-09-1999
Kathleen A. Conn, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kathleen A. Conn v. United States Postal Service
01983845
June 9, 1999
Kathleen A. Conn, )
Appellant, )
) Appeal No. 01983845
v. ) Agency No. 41640006398
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The FAD was dated March
26, 1998. The appeal was postmarked on April 15, 1998. The appeal is
accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely EEO Counselor contact.
BACKGROUND
Appellant alleged discrimination on the basis of mental disability
(depression) when:
(1) on January 15, 1997, her route was changed and her requested
accommodation was denied;
(2) in February 1997, her request to work part-time was denied;
(3) on February 12, 1997, she was denied union representation;
(4) in the summer of 1997, her confidential medical records were reviewed
by unauthorized personnel; and
(5) on September 5, 1997, she was forced to retire.
Appellant asserts that she first contacted an EEO Counselor on May 5,
1997, by telephone. The telephone record of the two calls to the EEO
Complaints Processing Office, Mid-American District (EEO Office)
are included in the agency file. They were made on May 5, 1997 at
2:34 p.m. and 3:49 p.m., respectively and were each one minute long.
According to the appellant, she was told that the EEO office "could not
help her" and that her "situation did not constitute an EEO complaint."
She did not contact an EEO Counselor again until January 12, 1998.
The agency maintains that this was actually the first time that she
contacted an EEO Counselor. In a letter to the EEO Office dated February
6, 1998, appellant explained that she was untimely in contacting an EEO
counselor the second time because of her depression and because she was
trying to seek help through other channels. Appellant did not provide any
medical evidence of her depression and did not explain why her initial
contact on May 5, 1997 was also untimely. Appellant filed her formal
complaint on February 25, 1998. The FAD was issued on March 26, 1998.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of the personnel action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all the
facts that would support a charge of discrimination have become apparent."
Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,
1990).
The Courts have held that a complainant's mental condition may justify
tolling the limitation period, if the impairment renders the complainant
incompetent and incapable of handling his own affairs or comprehending
his legal rights. Speiser v. Department of Health & Human Services,
670 F. Supp 380, (D.D.C. 1986), aff'd without opinion, 818 F.2d 95
(D.C. Cir. 1987). Merely suffering from impaired judgement is not
sufficient to toll the limitation period, and appellant must present
sufficient evidence to support a finding that she was incapable of
handling her own affairs during the 45 day limitation period. Thompson
v. Department of Agriculture, EEOC Request No. 05971092 (July 3, 1997),
Miller v. Air Force, EEOC Request No. 05950888 (December 2, 1996).
The Commission finds that appellant was untimely in contacting an EEO
Counselor for any of her allegations. Assuming that she did contact
an EEO Counselor on May 5, 1998, this date was more than 45 days after
the January 15, 1997, February, 1997 and February 12, 1997 incidents.
Appellant's assertion that she was depressed does not justify tolling
the limitation period. Complainant has not shown that her depression
rendered her incompetent and incapable of handling her own affairs or of
comprehending her legal rights. She does not provide any medical evidence
of her depression and she did, in fact, contact the union during the 45
day time period when she could have timely contacted an EEO Counselor.
Her January 12, 1998 EEO Counselor contact was also untimely for the
summer 1997 and the September 5, 1997 allegations because it was also
more than 45 days after these incidents.
CONCLUSION
Accordingly, the decision of the agency 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. 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 (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 9, 1999
______________ ______________________________
Date Carlton Hadden, Acting Director
Office of Federal Operations