Bernal A. Otto, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 9, 1999
01982108 (E.E.O.C. Jan. 9, 1999)

01982108

01-09-1999

Bernal A. Otto, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Bernal A. Otto v. United States Postal Service

01982108

January 9, 1999

Bernal A. Otto, )

Appellant, )

) Appeal No. 01982108

v. ) Agency No. 4-I-570-0048-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On January 12, 1998, appellant filed an appeal with this Commission from

an October 1, 1997 final agency decision dismissing his complaint for

failure to file the complaint in a timely manner. The agency failed

to provide a certified mail return receipt or any other material

capable of establishing the date when appellant received the final

agency decision. Accordingly, the Commission presumes that appellant's

appeal was filed within 30 days of appellant's receipt of the agency's

final decision. Accordingly, the appeal is accepted as timely (see,

29 C.F.R. �1614.402(a)), in accordance with the provisions of EEOC Order

No. 960, as amended.

In dismissing appellant's August 6, 1997 complaint, the agency noted

that although appellant received his Notice of Right to File on July 22,

1997, appellant did not file his complaint until August 7, 1997, which

was beyond the requisite 15-day time period.

EEOC Regulation 29 C.F.R. �1614.106(b) provides that the complaint

must be filed within 15 days of the notice required by �1614.105(d).

EEOC Regulation 29 C.F.R. �1614.105(d) provides that a notice

of final interview shall inform the complainant of the right to

file a formal complaint within 15 days of receipt of the notice.

Under certain circumstances, the time limit may be extended. See 29

C.F.R. �1614.604(c). EEOC Regulation 29 C.F.R. �1614.604(b) provides

that a document shall be deemed timely if it is delivered in person or

postmarked before the expiration of the applicable filing period, or,

in the absence of a legible postmark, if it is received by mail within

five days of the expiration of the applicable filing period.

The record reveals that appellant received the Notice of Right to

File on July 22, 1997. The Notice informed appellant that he had 15

days from receipt of the Notice within which to file his complaint.

The envelope containing the complaint is postmarked August 7, 1997.

Therefore, appellant's complaint was untimely.

On appeal, appellant submitted a medical note, dated January 13, 1998,

wherein the physician, a family practitioner, states that appellant's

emotional state has been such that he was unable to concentrate and

that was the reason appellant was unable to complete certain forms in

a timely fashion. The note reveals that appellant had a history of

"some" chronic anxiety that was exacerbated over the past two years.

The note also reveals that appellant was off work for several months

because of an inability to cope with the situation at work and that he

was treated for anxiety and depression.

Upon review, we find that appellant's justification for the untimely

filing is not sufficient to extend the time limit. The Commission has

held that a complainant's failure to meet a filing deadline will be

excused only if the complainant establishes that he was so physically

or emotionally incapacitated that he was unable to adhere to time

limitations. See Zelmer v. U.S. Postal Service, EEOC Request No. 05890164

(March 8, 1989). The Commission has also ruled that evidence that an

employee is under a physician's care is not dispositive of an employee's

inability to take timely action. See Johnson v. Department of Health

and Human Services, EEOC Request No. 05900873 (October 5, 1990).

Consistent with our discussion, the final agency decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. 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 (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:

Jan 9, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations