01A04737_r
09-20-2001
Tina L. Elliott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tina L. Elliott v. United States Postal Service
01A04737
September 20, 2001
.
Tina L. Elliott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04737
Agency No. 4-H-310-0122-00
DECISION
Complainant initiated contact with an EEO Counselor on March 29, 2000.
On April 25, 2000, complainant filed a formal EEO complaint wherein she
claimed that she was discriminated against on the basis of reprisal for
her previous EEO activity when on February 4, 2000, management instructed
her to deliver the mail loaded in her vehicle. Complainant stated that
a package emitted a beeping sound similar to that of a bomb and she was
told to deliver the mail without first locating the package and making
a determination of whether the package contained a bomb.
In its decision dated May 30, 2000, the agency dismissed the complaint
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that since the
alleged incident occurred on February 4, 2000, complainant's contact
of an EEO Counselor on March 29, 2000, was after the expiration of the
45-day limitation period.
On appeal, it is evident that complainant is contending that she was
unable to contact an EEO Counselor because she was rendered mentally
incapacitated as a result of the alleged incident. In support of
her position, complainant submits a statement from her psychiatrist.
The psychiatrist states with respect to complainant's untimely EEO contact
that during the relevant period, complainant was not relating to time
sufficiently enough for her to be aware of deadlines. The psychiatrist
notes that he has been treating complainant for post-traumatic stress
syndrome since February 18, 2000. The record also contains requests
from complainant's psychiatrist dated February 18, 2000, and March 28,
2000, that each sought a 30-day leave of absence for complainant due to
a moderately severe emotional disorder. In a statement dated May 22,
2000, complainant's psychologist states that complainant began therapy
with that office on February 7, 2000, and has continued through the
date of the letter. The psychologist diagnoses complainant as suffering
from an adjustment disorder with anxiety and depression. According to
the psychologist, complainant became emotionally paralyzed after the
incident at issue, and she found it difficult to continue work or carry
out her daily living activities.
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). The Commission finds that
complainant has established that she was sufficiently incapacitated
so as to be unable to initiate the EEO process within 45 days of the
alleged incident. Complainant's psychiatrist stated that complainant
is suffering from post-traumatic stress syndrome as a result of the
alleged incident. The psychiatrist stated that complainant was not
relating to time sufficiently enough for her to be aware of deadlines.
We find that an extension of the 45-day limitation period is warranted
and that complainant's contact of an EEO Counselor on March 29, 2000,
was therefore timely.
Accordingly, the agency's dismissal of the complaint on the grounds of
untimely EEO contact was improper and is REVERSED. This complaint is
hereby REMANDED pursuant to the Order set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
September 20, 2001
__________________
Date