0120130104
03-20-2013
Yvonne C. Rivera, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Yvonne C. Rivera,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120130104
Agency No. 4K-200-0083-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 29, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Service Associate at the Agency's Processing & Distribution Center facility in Washington, D.C.
On May 18, 2012, Complainant contacted the EEO Counselor regarding an event that occurred involving Complainant's Manager, Customer Services (Manager). She alleged that he bullied, ridiculed and mocked her in front of her co-workers. When the matter was not resolved informally, on July 27, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Hispanic), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on April 17, 2012, Complainant felt threatened and intimidated by the actions of the Manager.
The record discloses that Complainant received the notice of right to file a formal complaint (Notice) on July 5, 2012. Although the Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until July 27, 2012, which the Agency found to be beyond the limitation period. As such, the Agency issued its final decision dismissing the matter pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
On appeal, Complainant asserted that she had been "incapacitated" from May 18, 2012, through July 16, 2012. At that time, Complainant discovered in her accumulated mail that she had received the Notice. She promptly returned the formal complaint to the Agency.
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 fifteen (15) days of receiving notice of the right to do so.
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 her condition that she 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).
On appeal, Complainant provided a copy of a "Verification of Treatment" form signed by her physician which states that Complainant has received medical treatment on May 18, 2012, and that she has been "ill and unable to work" from May 18, 2012 to July 9, 2012. A second "Verification of Treatment" form dated July 11, 2012, shows that Complainant was to be out of work from July 9, 2012 to July 13, 2012. It noted that Complainant could return to work on July 16, 2012. Upon review, we find that Complainant provided notes regarding her ability to work. However, we find that Complainant has not demonstrated that her illness rendered her incapacitated. Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Complainant received the Notice on July 5, 2012, but did not file the formal complaint until July 27, 2012, beyond the 15 day time limit.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.
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
March 20, 2013
__________________
Date
2
0120130104
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130104