05990216
06-04-1999
Ruby E. Fontenot, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ruby E. Fontenot v. United States Postal Service
05990216
June 4, 1999
Ruby E. Fontenot, )
Appellant, )
)
v. ) Request No. 05990216
) Appeal No. 01982071
William J. Henderson, ) Agency No. 1F-904-0001-98
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DENIAL OF REQUEST TO RECONSIDER
On December 9, 1998, Ruby E. Fontenot (appellant) timely initiated a
request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Ruby E. Fontenot v. United States
Postal Service, EEOC Appeal No. 01982071 (November 4, 1998)
received on November 9, 1998. EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
ISSUE PRESENTED
The issue on appeal is whether the previous decision properly affirmed
the agency's dismissal of appellant's complaint on the grounds that
appellant failed to seek EEO counseling in a timely manner.
BACKGROUND
Appellant contacted an EEO Counselor on September 15, 1997, alleging
that she was discriminated against on the basis of her race (Black),
sex (female), age (DOB 3-1-57) and physical disability (left pelvic
pain and pelvic mass), when on July 24, 1997 she was terminated from
her probationary position at the agency. After EEO counseling failed
to resolve the issue, appellant filed a formal complaint raising the
above mentioned matter with the agency. Thereafter, the agency issued a
final agency decision finding that appellant failed to contact an EEO
Counselor in a timely manner. On appeal, appellant presented hospital
records which indicate that she was hospitalized from August 11 through
13, 1997 for surgical excision of a left tubo-ovarian abscess after
experiencing chronic pelvic pain. Upon her release from the hospital, she
was prescribed the medication, Darvocet, for pain relief. Notwithstanding
appellant's submission, the previous decision affirmed the dismissal of
appellant's complaint for failure to contact an EEO Counselor in a timely
manner, noting that appellant had failed to show that she was unable to
contact an EEO Counselor either before or after her discharge from the
hospital. With her request for reconsideration herein, appellant submits
a note from her gynecologist dated January 22, 1999 indicating that
appellant suffered from Endometriosis and a left ovarian abscess. The
note stated generally that she was sedated with analgesics until surgery
on 8-11-97 and "after" and that she was released to return to regular
activity on 10-8-97. The agency has responded to appellant's request for
reconsideration by asserting that the request does not meet the criteria
for reconsideration.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date
of an alleged discriminatory personnel action. Appellant contacted an
EEO Counselor on September 14, 1997, eight days beyond the 45 day time
limitations period.
In this case, we find that both the agency and the previous decision
correctly assessed appellant's EEO Counselor contact as untimely. 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 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).
Upon review of all of appellant's medical documentation, we find that
the documentation submitted to the Commission on appeal was, as stated
by the previous decision, clearly insufficient to demonstrate that she
was physically incapable of contacting an EEO Counselor either before
or after her three day hospitalization. Even when the additional note
provided by appellant on reconsideration is considered, it is insufficient
to establish that she was physically or mentally incapable of making
the requisite EEO Counselor contact by letter or telephone during the
entire 45-day time period.
Accordingly, the previous decision, which affirmed the agency's FAD
dismissing appellant's complaint for failure to timely contact an EEO
Counselor, was proper and appellant's request for reconsideration is
DENIED.
CONCLUSION
After a review of the appellant's request for reconsideration,
the agency's response thereto, the previous decision, and the entire
record, the Commission finds that the appellant's request fails to meet
the criteria of 29 C.F.R. �1614.407(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01982071
(November 4, 1998) remains the Commission's final decision. There is no
further right of administrative appeal from a decision of the Commission
on this request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat