Jeanv.Laurie, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 21, 2000
01A05424_r (E.E.O.C. Dec. 21, 2000)

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.