01A31023_r
03-26-2003
Symiah W. Morgan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Symiah W. Morgan v. United States Postal Service
01A31023
March 26, 2003
.
Symiah W. Morgan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31023
Agency No. 1-G-774-0005-02
DECISION
Complainant timely appealed to this Commission from the agency's
November 8, 2002 dismissal of her employment discrimination complaint.
In her complaint, complainant alleged discrimination on the basis of
sex (female) when since February 2002, she was sexually harassed by a
coworker, but management failed to take any appropriate corrective action.
The agency dismissed the complaint for failure to file a timely formal
complaint, pursuant to 29 C.F.R. � 1614.107(a)(2). The record discloses
that complainant received the notice of right to file a formal complaint
on September 3, 2002. The notice informed complainant that she must
file her formal complaint within fifteen (15) calendar days, but she
failed to comply with the time limit. Complainant's formal complaint
was postmarked September 30, 2002.
On appeal, complainant admits that her complaint was not timely,
but argues she should be granted an extension due to extenuating
circumstances. Complainant contends that on September 4, 2002, her
father killed his wife, then committed suicide. To verify her contention,
complainant provides a copy of her father's death certificate, indicating
that he died of a �self-inflicted gunshot wound.� She argues that
dealing with death is difficult, but his father's suicide left her
�helpless emotionally.� She also notes that her father's insurance
policies were invalidated by his suicide, and he died without a will.
As a result, she contends that she has �been burdened with everything,�
including bickering relatives fighting over his estate. She asserts
that she filed her formal complaint as soon as she was able.
Complainants must file their formal complaints within fifteen (15) days
of receiving the right to do so. 29 C.F.R. � 1614.106. The regulations
require the dismissal of claims that fail to comply with this time limit.
29 C.F.R. � 1614.107(a)(2). Nonetheless, this time limit is subject to
waiver, estoppel, and equitable tolling. 29 C.F.R. � 1614.604(c).
Generally, the Commission has refused to waive the time limits for a
claimant dealing with the death of a relative. See Ponte v. Department
of the Treasury, EEOC Appeal No. 01A00899 (May 16, 2000) (death of nephew,
in addition to inability to hire attorney, does not justify untimeliness);
Smith v. United States Postal Service, EEOC Appeal No. 01965183 (July 10,
1997) (death of aunt not sufficient to extend time limit). However, the
Commission has found that the death of a close relative may be sufficient
reason to waive the time limit. Kobel v. Department of the Treasury,
EEOC Appeal No. 01A01996 (June 14, 2000) (death of mother during fifteen
day period, where claimant filed shortly thereafter, enough to waive
time limit); but see Shaw v. United States Postal Service, EEOC Appeal
No. 01A22285 (June 14, 2002) (depression and mother's death, absent
evidence that the claimant was so incapacitated that she was unable to
file a complaint, does not warrant extension of the time limit).
Complainant's situation involves more than the death of a relative. Her
grief and responsibilities are compounded by its heinous circumstances.
Further, complainant, in an attempt to dilligently pursue her claim,
filed shortly after the time limit expired. Given these unique
circumstances, the Commission finds adequate grounds to extend the
time limit. Accordingly, the agency's dismissal is REVERSED, and the
complaint is REMANDED for further processing.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
March 26, 2003
__________________
Date