01a01390
05-12-2000
Rita Davis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rita Davis, )
Complainant, )
)
v. )
) Appeal No. 01A01390
William J. Henderson, ) Agency No. 4-J-606-0314-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 29, 1999, complainant filed an appeal with this Commission
from a final agency decision (FAD) pertaining to her complainant of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO Counselor regarding claims of discrimination
based on disability. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on September 24, 1999, complainant
filed a formal complaint. The agency framed the claim as follows:
On November 19, 1998 to present, complainant was told to call before
reporting to work each day and sent to other stations.
The agency dismissed the complaint on the grounds that it was untimely
filed, in a FAD issued on October 19, 1999. Specifically, the agency
determined that complainant received a Notice of Right to File a Formal
Complaint on September 8, 1999; and that complainant did not file her
complaint until sixteen days later, on September 24, 1999. The agency
therefore determined that the complaint was filed beyond the fifteen
day time limitation.
On appeal, complainant argues that she called the EEO office and was told
to send in her complainant even though it was a day late, at which time,
complainant faxed the complaint to the agency. Further, complainant
contends she had recently been under a doctor's care for stress.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 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.
The record in this case contains a copy of Domestic Return Receipt showing
that complainant received the Notice of Right to File on September 8,
1999. The complaint was not filed until September 24, 1999, one day
beyond the fifteen day time limitation stated in the Notice. Therefore,
we find that the complaint was untimely. On appeal, complainant admits to
the late filing, but argues that the EEO office advised her nonetheless
to file the complaint. Assuming that the EEO office told complainant
to send in her complaint after the fifteen day period had passed, we
do not find this is sufficient reason to toll or waive the time limit.
The EEOC Management Directive (MD) 110, requires that �[u]nder no
circumstance should the Counselor attempt to dissuade a person from
filing a complaint.� EEOC Management Directive (MD) 110, as revised,
November 9, 1999, Chapter 2, page 2-9. Further, complainant contends
that she had been under a doctor's care for extreme stress. When a
complainant claims that a physical condition prevents her from meeting
a particular filing deadline, the Commission has held that in order to
justify an untimely filing, the complainant must be so incapacitated
by the condition as to render her physically unable to make a timely
filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8. 1989).
The same is true regarding claims of incapacity related to psychiatric
or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700
(October 29. 1992). Here, the record contains no documentation reflecting
that complainant was so incapacitated during the applicable fifteen-day
period as to prevent her from timely filing her complaint. Therefore,
we find complainant has failed to present adequate justification for
extending the filing period.
Accordingly, the agency's decision to dismiss appellant's complaint as
untimely was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.