0120161561
06-15-2016
Marica H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marica H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161561
Agency No. 4G-752-0026-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 29, 2016, dismissing a formal 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Carrollton Main Post Office in Carrollton, Texas.
On February 9, 2016, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of race, disability, and age.
On February 29, 2016, the Agency issued a final decision. The Agency dismissed the formal complaint, on the grounds that it was untimely filed. Specifically, the Agency found that on January 26, 2016, Complainant received a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") dated January 25, 2016. The Notice informed Complainant that she had 15 days to file a formal complaint after receiving the Notice. However, the Agency found that Complainant's formal complaint was postmarked February 11, 2016, 16 days after she received the Notice, and 1 day beyond the limitation period.
The instant appeal followed. On appeal, Complainant argues that any delay in the filing of the formal complaint was attributable to her being "out of sorts" following an accident.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. A complaint is deemed timely if it is received 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.
Based on the documentation relating to the transmission of the Notice, we determine that the Agency's dismissal, due to the untimely filing of the formal complaint, was proper. The record contains a Product Tracking and Reporting document, which records the Notice's date of delivery as January 26, 2016 and shows Complainant's signature and address of record. Although the Notice indicated that Complainant had 15 calendar days to file a formal complaint after she received the Notice, Complainant's formal complaint was postmarked February 11, 2016, which is beyond the limitation period.
On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint, when she asserted that she was "out of sorts" following an accident. When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, the Commission has held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. United States Postal Service, EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity attributable to psychiatric or psychological conditions. See Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). Complainant's statement about her accident, without more detail and absent supporting documentation, is too general to support a finding of incapacitation for the limitation period at issue.
The Agency's final decision dismissing the formal complaint for the reason addressed above is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 15, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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