01a02242
05-25-2000
Joycelyn N. Biggs, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joycelyn N. Biggs, )
Complainant, )
)
v. ) Appeal No. 01A02242
) Agency No. 1-H-352-0002-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an
agency's decision dated December 21, 1999 dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of physical disability and mental disability when on December
28, 1998, she was terminated.
The agency dismissed the complaint for untimely counselor contact.
Specifically, the agency found that complainant failed to contact a
counselor until October 12, 1999, ten months after she was terminated.
On appeal, complainant argues that she was unable to pursue her claim
sooner because of depression. Complainant explained that she requested
a leave of absence to treat depression on October 16, 1998. Complainant
contends that when she was terminated, she became more depressed and could
no longer afford her weekly appointments with a clinical psychologist.
She asserts that to handle the situation without violent outburst,
she blocked the incident out of her mind. Subsequently, complainant,
a member of the U.S. Army Reserves, was ordered to deploy in Bosnia
on February 26, 1999. Complainant argues that her condition worsened
in Bosnia, and she was returned home for treatment in August 1999.
After several months of therapy and prescription medication, complainant
claims she was able to pursue her claim.
Complainant attached a letter from a psychologist, dated October 16,
1998, requesting that complainant be granted a leave of absence to
pursue further treatment for depression. Complainant also included her
army deployment orders, and two statements from military physicians.
The first statement noted that complainant was not fit for military
duty or civilian employment from August 10, 1999 until November 1, 1999.
The second statement found that complainant was not fit for military duty
or civilian employment from November 1, 1999 until December 31, 1999.
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 forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
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. United States Postal Service, EEOC
Request No. 05980475 (August 6, 1998). Claims of mental incapacity must
be supported by medical evidence of incapacity. See Crear v. United
States Postal Service, EEOC Request No. 05920700 (October 29, 1992)
(claimant's argument that she suffered from depression and could file
only after obtaining treatment from a psychiatrist, was not enough to
show incapacity); see also Sohal v. United States Postal Service, EEOC
Request No. 05970461 (April 24, 1997) (letter from psychologist stating
that claimant's �continuous and unrelenting� depression rendered him
unable to make decisions, and that his medication further affected his
cognitive abilities, was sufficient to prove incapacity). Evidence that
a claimant suffered great mental stress, and obtained treatment for that
stress, is not enough to prove incapacity. See Galbreath v. Department
of the Navy, EEOC Request No. 05980927 (November 4, 1999).
In the present case, complainant's evidence does not establish that she
was unable to file a timely complaint. Complainant has presented no
medical evidence concerning her condition from December 1998 through
August 1999. Further, complainant provided documents that she was
unable to work from August 10, 1999 through December 31, 1999, but she
contacted a counselor during that period. Therefore, the Commission
finds no reason to extend the 45-day filing period, and the agency's
dismissal 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 25, 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.