01983086
01-11-1999
Marie B. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marie B. Smith v. United States Postal Service
01983086
January 11, 1999
Marie B. Smith,
Appellant, )
)
v. )
) Appeal No. 01983086
) Agency No. 4-G-700-0277-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission sets aside the agency's February 11, 1998 final decision
(FAD), received by appellant on February 13, 1998, which dismissed,
as untimely filed,<1> her January 6, 1998 formal EEO complaint.<2> The
FAD found that appellant received her final interview on December 19,
1997, but did not file her complaint until January 8, 1998,<3> beyond
the applicable time limitation of 15 days.<4> In her March 11, 1998
appeal, filed through her union representative, appellant argues that
the complaint was untimely due to medical reasons.<5> We find, from a
document submitted by her on appeal, that appellant underwent surgery,
on what appears to be an outpatient basis, on December 30, 1997, for the
removal of a "mass (knot)" on her right breast. The hospital's discharge
instructions advised appellant, inter alia, not to sign legal documents
for 24 hours.
We find the record insufficient for a determination as to whether
appellant was so medically incapacitated as to justify an extension of the
time within which she had to file her complaint. Story v. U.S. Postal
Service, EEOC Request No. 05960099 (December 9, 1996); Mullinex
v. U.S. Postal Service, EEOC Request No. 05950066 (September 8,
1995). Therefore, we will direct the agency to conduct a supplemental
investigation into the timeliness of appellant's complaint filing.
Mitchell v. U.S. Postal Service, EEOC Request No. 05950476 (March 1,
1996).
Accordingly, the FAD is hereby VACATED and appellant's complaint is hereby
REMANDED for further processing consistent with the Commission's decision
and applicable regulations. The parties are advised that this decision
is not a decision on the merits of appellant's complaint. The agency
is directed to comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall conduct a supplemental investigation to determine
whether appellant was physically and/or emotionally incapacitated during
the period from December 19, 1997, when she received the notice of the
right to file a complaint, until January 8, 1998, when appellant filed
her complaint.
2. The agency shall determine the specific length of time, with reference
to specific dates, for the period cited in item (1) above, when appellant
was incapacitated, if at all, and thus unable to file her EEO complaint
in a timely manner.
3. The agency may supplement the record by indicating whether and when
appellant worked, including working overtime, during the time period
referenced in item (1) above.
4. The agency shall indicate whether, to whom, when, and the manner in
which, appellant and/or her representative, requested an extension of
the applicable time limitation.
5. The agency shall provide appellant with an opportunity to submit
evidence of incapacitation, including, but not limited to, true copies
of the medical records of appellant's treating physician, surgeon,
and other treating health-care professionals, relevant to the time
period referenced in item (1) above. Any statements of the aforesaid
individuals shall address in detail the issue of whether appellant was so
physically or emotionally incapacitated as to be precluded from filing
a timely complaint in this matter, and the specific cause or causes,
as well as nature of, such incapacitation. Statements referenced above
shall also include the specific date(s) of appellant's hospitalization
and/or stay in any other health-care facility during the applicable time
period referenced in item (1) above.
6. Thereafter, the agency shall issue to appellant and her representative
either a letter accepting her complaint for investigation or a final
decision of dismissal. If the agency dismisses appellant's complaint,
it shall provide her with appeal rights to the Commission, and shall
specify the legal grounds, factual bases, and evidence relied upon.
7. All ORDERED actions, including the supplemental investigation and
report pertaining thereto, as well as the letter of acceptance or final
decision, cited in item (6) above, shall be completed by the agency
within ninety (90) calendar days of the date the Commission's decision
becomes final.
8. The agency shall provide true copies of the report of supplemental
investigation and letter of acceptance or final decision to the Compliance
Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
January 11, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1See 29
C.F.R. �1614.107(b), in relevant part.
2 Although appellant's complaint was dated January 6, 1997, we regard
this as a typographical error. Appellant alleged the incident occurred
in July 1997, and initiated EEO counseling on August 29, 1997.
3 The filing of an EEO document is determined, inter alia, by its
postmark. See 29 C.F.R. �1614.604(b).
4 See 29 C.F.R. �1614.106(b).
5 The agency offered no response to appellant's appeal.