0120103028
11-12-2010
Patricia F. Saracino, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Patricia F. Saracino,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120103028
Agency No. 4E800010810
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 22, 2010, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
On February 22, 2010, Complainant contacted an EEO Counselor regarding her claim of discrimination. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File her formal complaint on May 24, 2010. Complainant filed her formal complaint on June 9, 2010. In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (not specified), sex (female), disability (not specified), age (49 years old), and reprisal for prior protected EEO activity when:
1. On November 23, 2009, Complainant reported that she was not feeling well. She was told to continue her route and, subsequently, was involved in a vehicle accident;
2. On January 11, 2010, Complainant received a Letter of Warning for Unacceptable Work Performance Unsafe Act;
3. On January 21, 2010, the Postmaster went out on the route with Complainant. Subsequently on February 3, 2010, Complainant was given a pre-disciplinary interview regarding time wasting practices;
4. On January 21, 2010, Complainant alleged that she was harassed by a co-worker and management did not respond;
5. On February 3, 2010, Complainant was issued a 7-Day Suspension for Failure to be Regular in Attendance/Absent Without Official Leave;
6. On February 22, 2010, Complainant requested that the threat assessment team come to her office. However, nothing was done with her request.
The Agency dismissed the complaint for untimely filing a formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency noted that Complainant received the Notice of Right to File on May 24, 2010. Complainant did not file her formal complaint until June 9, 2010, 16 days after she received her Notice. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
Complainant appealed requesting that the Commission remand the matter back to the Agency for further processing. Complainant noted that, to the extent she was late, she asserted that she has been under great stress and anxiety due to the Agency's alleged harassment.
ANALYSIS AND FINDINGS
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 fails 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 15 days of receiving notice of the right to do so. A review of the record shows that Complainant filed her formal complaint on June 9, 2010, one day beyond the 15 day time limit. On appeal, Complainant asserted that she was not able to meet the time limit due to the stress and anxiety she experienced. 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. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Here, Complainant has not asserted that her difficulties were so severe to incapacitate her. Therefore, we find that Complainant has not provided sufficient evidence to warrant and extension of the regulatory time limit. Accordingly, we find that the Agency's dismissal pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
November 12, 2010
__________________
Date
2
0120103028
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120103028