01997112
12-05-2000
Lisa S. Swanquist, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lisa S. Swanquist v. United States Postal Service
01997112
12-05-00
.
Lisa S. Swanquist,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997112
Agency No. 4J480015099
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), due to the untimely filing of the formal complaint.<1>
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for failure to file within fifteen
(15) days of receiving the notice of right to file.
BACKGROUND
Complainant filed a formal complaint on July 14, 1999 in which she
alleged discrimination on the basis of sex when she was harassed during
her pregnancy by her supervisors. In its final decision, the agency
dismissed the complaint, concluding that complainant failed to file her
complaint within 15 days of receiving the notice of right to file. It
is from that decision that complainant appeals.
Analysis and Findings
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint
with an appropriate agency official within 15 calendar days after the
date of receipt of the notice of the right to file a formal complaint.
An agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the 15-day time limit contained in 29 C.F.R. �
1614.107(a)(2), unless the agency extends the time limits in accordance
with 29 C.F.R. � 1614.604(c). Under 29 C.F.R. � 1614.604(c), this time
limit is subject to waiver, estoppel, and equitable tolling.
The record indicates that complainant received the notice of right to
file a formal complaint on June 24, 1999. Although the notice indicated
that complainant had to file a formal complaint within 15 calendar days
of its receipt, complainant did not file her formal complaint until July
14, 1999, which is beyond the limitation period. For the reasons set
forth below, complainant has failed to provide sufficient justification
for equitable tolling as to her complaint.
The complainant set forth several arguments that amount to requests for
an equitable tolling; however, sufficient justification for tolling the
requirements of 29 C.F.R. � 1614.106(b) has not been presented. First,
complainant explains that she missed the 15 day time limit because the
�original letter did not explain what all the 29 C.F.R. codes mean.�
Complainant also argues that �another person [she] was speaking to
regarding the complaint...mistakenly told [her that she had] 45 days to
submit the formal complaint.�<2> On review of the record, specifically
the notice of right to file, the Commission finds that complainant was
given detailed instructions on how to file a formal complaint and to
whom the complaint should be sent. Regardless of whether complainant
understood the various EEOC Regulations or whether she was misinformed by
�another person,� the notice of right to file clearly gives instructions
to the complainant as to a timely filing.
Complainant further argues that she had two complaints open at the time
she received the notice of right to file, causing her to confuse the
two files. This argument is unpersuasive, however, because complainant's
confusion, without more, does not present sufficient grounds for extending
the 15-day time limit. Moreover, the record establishes that complainant
went through the informal counseling process with an EEO counselor who
provided her with the required documents, including information about
the time limits as to the case at hand.
In regard to complainant's claim that the recent delivery of her third
child prevented her from filing her complaint in a timely manner, the
Commission has consistently held that an extension is warranted only
where an individual is so incapacitated by her physical or mental health
condition that she is unable to meet the regulatory time limits. See
Crear v. United States Postal Service, EEOC Request No. 05920700(October
29, 1992); Weinberger v. Department of the Army, EEOC Request
No. 05920040(February 21, 1992); Hickman v. Department of the Navy,
EEOC Request No. 05910707(September 30, 1991); Johnson v. Department of
Health and Human Services, EEOC Request No. 05900873(October 5, 1990); and
Zelmer v. United States Postal Service, EEOC Request No. 05890164(March
8, 1989). Here, complainant fails to provide any information as to when
she delivered her child, nor does she provide any medical evidence to
establish that she was physically or mentally incapacitated during the
time period at issue. Accordingly, the Commission finds that complainant
has not provided specific evidence in the instant case that would justify
an equitable tolling.
CONCLUSION
Accordingly, the Commission holds that the agency's decision to dismiss
complainant's formal EEO complaint for failure to comply with the 15-day
time limit contained in 29 C.F.R.
� 1614.107(a)(2) was proper, and is therefore, 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
__12-05-00________________
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.
2Complainant presents no evidence that it was an agency official who
mislead her.