01993226
05-11-2000
Austin B. Dancy, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Austin B. Dancy, )
Complainant, )
)
v. ) Appeal No. 01993226
) Agency No.1F-941-0014-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that the complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for failure to contact an EEO Counselor in a timely
manner.<1>
In his complaint, the complainant alleged that he was discriminated
against on the bases of race (Black), sex (male), and physical and
mental disabilities (chronic back pain, duodenal ulcer, dysthymia and
psychological factors affecting physical condition, schizophrenia with
depressive/paranoid features) when on April 8, 1988, he was issued a
notice of removal charging him with absence without official leave and
irregular attendance. The complainant last worked for the agency in
April 1988.
In dismissing the complaint, the agency noted that the complainant did
not contact an EEO Counselor until October 23, 1998, over 10 years from
the date of his removal by the agency.
On appeal, the complainant contends that he did not contact an EEO
Counselor because he was suffering from depression. He also asserts
that it took years to file his complaint because initially he did not
want to pursue a discrimination complaint and that he felt sick from
fighting the removal and his workers' compensation claim.<2>
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45
days of the effective date of the action. EEOC regulations permit the
time period to be extended under certain circumstances. See 29 C.F.R. �
1614.105(a)(2); 29 C.F.R. � 1614.604(c).
The Commission finds that the agency's final decision was proper.
The removal occurred in 1988 and the complainant did not contact an EEO
Counselor until November 18, 1998. Therefore, his contact was untimely.
Although the complainant states that he was suffering from depression
and was therefore unable to initiate Counselor contact, there is no
evidence that establishes that the complainant was so incapacitated for
all of the 10 years preceding his EEO contact that the time period should
be extended. The complainant himself states that he was fighting his
removal and workers' compensation claims. In addition, medical records
regarding the complainant's depression and schizophrenia reflect that
treatment occurred in May and June of 1988, November 1989 and 1991,
February 1992 and between July 20, 1994 and December 27, 1996. There is
no evidence in the record that would reflect that the complainant's
physical disability prevented him from timely contacting an EEO Counselor
for 10 years. The Commission has consistently held, in cases involving
physical or mental health difficulties, that an extension is warranted
only where an individual is so incapacitated by the condition that the
individual is unable to meet the regulatory time limits. See Crear
v. U.S. Postal Service, EEOC Request No. 05920700 (October 29, 1992);
Zelmer v. U.S. Postal Service, EEOC Request No. 05890164 (March 8, 1989).
Based on the foregoing, we do not find that the complainant was so
incapacitated that he was unable to make timely EEO contact.
Accordingly, the final agency decision 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 11, 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.
2It appears that the complainant sustained a work injury to his back on
August 19, 1979 and had subsequent re-injuries in the 1980s.