01A01641
05-26-2000
Marjorie B. Sommerfeldt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marjorie B. Sommerfeldt v. United States Postal Service
01A01641
May 26, 2000
Marjorie B. Sommerfeldt, )
Complainant, )
)
v. ) Appeal No. 01A01641
) Agency No. 4E-800-0295-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On December 14, 1999, complainant filed a timely appeal with this
Commission from an agency's decision pertaining to 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on sex and retaliation. Informal efforts to resolve complainant's
concerns were unsuccessful. Therefore, on October 22, 1999, complainant
filed a formal complaint alleging a hostile work environment.
On November 5, 1999, the agency issued a decision dismissing the
complaint as untimely filed. Specifically, the agency determined that
complainant's attorney received the Notice of Right to File on October 1,
1999; and that complainant did not file the complaint until October 22,
1999, beyond the fifteen day time limitation.
On appeal, complainant argues that the Notice was sent to an incorrect
address. Complainant's attorney explains that someone in his office
building signed for the Notice on October 1, 1999, but he did not actually
receive the Notice until October 8, 1999. At that time he forwarded
the Notice to complainant, and advised her to respond by the deadline.
Moreover, complainant contends that during the relevant time period she
was "pre-occupied with her husband's serious medical condition and not
capable of appreciating that she had a deadline to satisfy...."
In response, the agency argues that the Notice was correctly addressed
and sent to the address provided by complainant. In addition, even if
complainant's attorney did receive the Notice on October 8, 1999, the
agency contends that the attorney had ample time to file the complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 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. The regulations also
provide for the dismissal of complaints that fall to comply with this
time limit, unless the agency extends the time limit in accordance
with 29 C.F.R. 1614.604(c). See 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).
The record reveals that on the Information for Precomplaint Counseling
form, complainant indicated that her attorney's address was "300 E 17th
Ave., Ste. 700, Denver CO 80220." A Domestic Return Receipt shows that
the Notice was sent to complainant's attorney at that address, and was
signed for on October 1, 1999. Complainant's attorney argues, however,
that he is located at 303 E 17th Avenue and that another person in his
building signed for the Notice. The Commission finds that the agency
has fulfilled its obligation under 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified at 29 C.F.R. �1614.105) of transmitting the Notice of Right
to File a Complaint to complainant's address.
Moreover, complainant argues that during the relevant time she was
concerned with her husband's medical condition and therefore prevented
from complying with the fifteen day time limitation. She also provided
a letter from her psychologist, who stated that complainant was being
treated for depression and anxiety. Complainant's psychologist also
noted that during the time of her husband's surgery, complainant was
struggling to maintain a balance among all her demands and considered
opening the mail as a "non-priority task."
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 (Aug 6, 1998). Claims of incapacity must be
supported by medical evidence of incapacity. See Crear v. United States
Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992) (complaints
of decreased mental and physical capacity, without medical evidence
of incapacity, does not warrant extension of time limits); (cf. Maddux
v. United States Postal Service, EEOC Request No. 05980302 (Aug. 5, 1999)
(psychiatrist's statement that complainant's mental condition rendered
her unable to comprehend her legal rights and responsibilities found
sufficient to justify extension of time limit); Sohal v. United States
Postal Service, EEOC Request No. 05970461 (Apr. 24, 1997) (psychiatrist's
statement that complainant's severe depression and anxiety rendered him
unable to make decisions found sufficient to justify extension). Evidence
that a complainant has sought treatment does not, without evidence of
incapacity, justify an extension of time. See Galbreath v. Navy, EEOC
Request No. 05980927 (Nov. 4, 1999) (evidence that complainant was under
great mental stress, and received an evaluation/treatment, did not render
the complainant incapacitated). The Commission finds that complainant
was not so incapacitated during the relevant time period as to prevent
her from timely filing her complaint.
Accordingly, the agency's dismissal of the complaint was proper and is
hereby 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 26, 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.