01983678
06-21-1999
Maria Leigh Murray, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Southeast/Southwest Region Agency.
Maria Leigh Murray, )
Appellant, )
)
v. ) Appeal No. 01983678
William J. Henderson, ) Agency No. 4H310008998
Postmaster General, )
United States Postal Service, )
Southeast/Southwest Region )
Agency. )
______________________________)
DECISION
On April 10, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on March 24, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. In her complaint, appellant alleged that she was
subjected to discrimination on the bases of sex (female) and retaliation
(prior EEO activity) when on December 16, 1997, she was notified that
she was not selected for the position of Distribution/Window Clerk.
The agency dismissed appellant's allegation pursuant to EEOC Regulation
29 C.F.R. � 1614.105(d), for failure to submit a written complaint within
15 days of receipt of the Notice of Right to File Individual Complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(d), provides in relevant part that
an EEO complaint shall be filed within 15 days of receipt of the Notice
of Right to File Individual Complaint. Failure to comply with this time
limit is grounds for dismissal pursuant to 29 C.F.R. � 1614.107(b). EEOC
Regulation 29 C.F.R. � 1614.604(c) provides that this time limit is
subject to waiver, estoppel and equitable tolling.
EEOC Regulation 29 C.F.R. � 1614.605(d) provides that when a complainant
designates an attorney as representative, service of documents and
decisions on the complainant shall be made on the attorney, and time
frames for receipt of materials by the complainant shall be computed
from the time of receipt by the
attorney. Further, � 1614.605(e) provides that the complainant shall at
all times be responsible for proceeding with the complaint whether or
not he or she has designated a representative.
The record reveals that the appellant's Notice of Right to File Individual
Complaint was received by her attorney on February 6, 1998. A formal
complaint was not filed until March 4, 1998, which is beyond the 15 day
limitation. The complaint should have been filed by February 21, 1998.
Appellant's attorney concedes that the complaint was filed late but
indicates that extenuating circumstances were involved. He indicates
that he was not aware that the Notice of Right to File was received by
his office until February 26, 1998, at which time he called appellant
regarding the notice. The attorney maintains that appellant's complaint
was not filed timely because he had had a sudden increase in litigated
employment discrimination cases since October 1994, he had the sudden
loss of two secretaries/assistants whose efforts had made it possible
for the numerous filing deadlines to be substantially met and because
the new replacements had simply not shown up. He states, in fact, the
secretary that actually signed for receipt of the Notice of Right to File
Individual Complaint had been employed by his office for only three days.
Appellant's attorney also maintained that during the time in question,
he suffered from a severe bout of depression and anxiety, which caused
him to be totally dysfunctional. We have consistently held, in cases
involving physical or mental health difficulties, that an extension is
warranted only where an individual is so incapacitated by his condition
that he 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, 1992); Weinberger v. Department of the Army, EEOC Request
No. 05920040 (February 21, 1992); Hickman v. Department of the Navy,
EEOC Request No. 05910707 (September 30, 1991); Johnson v. Department of
Health and Human Services, EEOC Request No. 05900873 (October 5, 1990);
and Zelmer v. United States Postal Service, EEOC Request No. 05890164
(March 8, 1989). Appellant's attorney submitted as evidence of his
incapacitation a note dated February 19, 1998, from his treating physician
which indicated that at the time in question, the attorney was not able to
function adequately in his capacity as an attorney representing clients.
The Commission finds that appellant's attorney failed to adequately
show that he was so incapacitated by his condition that he was unable
to comply with the regulatory time limits. See Bowie v. United States
Postal Service, EEOC Request No. 01951394 (June 2, 1995).
CONCLUSION
Accordingly, the agency's decision dismissing the complaint 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