01A11034
03-23-2001
LeVern M. Mitchell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.
LeVern M. Mitchell v. United States Postal Service
01A11034
March 23, 2001
.
LeVern M. Mitchell,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A11034
Agency No. 1F-901-0080-98
Hearing No. 340-99-3441X
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final Action dated September 26, 2000, dismissing her complaint of
unlawful employment discrimination. Pursuant to 29 C.F.R. � 1614.405,
the Commission accepts the complainant's appeal from the agency's final
Action in the above-entitled matter. Complainant alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. and the Section 501 of
the Rehabilitation Act of 1973<1> (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. on the bases of sex (female), disability (not
specified) and retaliation (prior EEO activity), when she was charged with
being Absent Without Leave and issued a Notice of Removal, later reduced
to a Fourteen (14) calendar day suspension, on January 14, 1998. The EEOC
Administrative Judge (AJ) assigned the case dismissed complainant's
claim pursuant to 29 C.F.R. � 1614.107(a)(2), as her formal complaint
was not timely filed, and the agency adopted the findings of the AJ.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which falls to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so.
A review of the record establishes that on May 11, 1998, complainant
received by certified mail her Notice of Right to File a Discrimination
Complaint (hereinafter "Notice"). As found by the AJ, complainant's
formal complaint was due with the agency on or before May 26, 1998,
the fifteenth day after complainant received the Notice. The formal
complaint was dated May 24, 1998 and postmarked on May 28, 1998,
beyond the fifteen-day time limitation. While complainant argues that
her mental disability prevented her from timely filing her complaint,
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). As found by the AJ,
the evidence does not establish that complainant was so incapacitated
that she was unable to timely file the formal complaint. Therefore,
we find that complainant has not offered sufficient justification for
tolling or extending the time limitation for filing a formal complaint.
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 23, 2001
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.