01A05424_r
12-21-2000
Jean V. Laurie, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jean V. Laurie v. United States Postal Service
01A05424
December 21, 2000
.
Jean V. Laurie,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05424
Agency No. 4E-990-0028-88
DECISION
On August 2, 2000, complainant filed an appeal with this Commission from
an agency decision pertaining to 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on sex, retaliation, and disability. Specifically, complainant
claimed she was discriminated against when on March 20, 2000, she was
issued a Notice of Removal due to attendance related issues. According
to complainant, the agency denied her an accommodation to care for her
disabled child. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on May 31, 2000, complainant filed a
formal complaint.
On June 29, 2000, the agency issued a decision dismissing the complaint
on the grounds that it was untimely filed. The agency determined that
complainant received a Notice of Right to File Individual Complaint,
which described the fifteen-day time limitation, on May 9, 2000.
Complainant did not fax the complaint to the agency until May 31, 2000,
eight days past the time limit.<2>
On appeal, complainant, through her attorney, admits that the complaint
was filed beyond the time limitation. Complainant argues, however, that
the delay was due to the attention that her children required during the
relevant time period. According to complainant, her daughter suffers
from Chrone's disease and was particularly ill at that time; and that
her son had influenza.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency
extends the time limits in accordance with � 1614.604(c).
The record in the instant case contains a copy of a Domestic Return
Receipt showing that complainant received the Notice on May 9, 2000.
The Notice informed complainant that she had fifteen days from the
date of receipt of the notice in which to file a formal complaint.
The record further reflects, and complainant admits on appeal, that
she did not file the complaint within fifteen days of receipt but,
instead faxed the complaint to the agency on May 31, 2000. Complainant
argues that her untimely filing was due to caring for her ill children.
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 her condition that she 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).
Complainant has failed to show that she was so incapacitated that she
was prevented from timely filing her complaint. Therefore, we find
complainant has not provided adequate justification, pursuant to 29
C.F.R. � 1614.604(c) for extending the filing period.
Accordingly, the agency's dismissal of the complaint was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 21, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record reflects that a Notice of the Right to File Individual
Complaint was also received by complainant's attorney of record, on May
8, 2000.