Appellant,
V.
Anthony M. Frank, Postmaster General, United States Postal Service, (Southern Region), Agency.

Request No. 05920700
Appeal No. 01921543
Agency No. 3-A-1121-92

April 15, 1992

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

On May 21, 1992, Appellant (hereinafter referred to as appellant) timely initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Appellant v. Anthony M. Frank, Postmaster General, United States Postal Service (Southern Region), EEOC Appeal No. 01921543 (April 15, 1992).[FN1] EEOC Regulations applicable to the instant case provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision. 29 C.F.R. §1613.235(a).[FN2] The party requesting reopening must submit written argument or evidence which tends to establish one or more of the following three criteria: 29 C.F.R. §1613.235(b)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. §1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy); and 29 C.F.R. §1613.235(b)(3) (the previous decision is of such exceptional nature as to have effects beyond the actual case at hand). Appellant does not specify upon which of the aforementioned criteria she bases her request. For the reasons set forth herein, appellant's request is denied.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed the agency's decision rejecting appellant's complaint for failure to timely initiate EEO counseling.

BACKGROUND

On October 7, 1991, appellant initiated EEO counseling with respect to her allegation of physical handicap discrimination (carpal tunnel syndrome). Appellant alleged that she was discriminated against when, effective 3, 1991, she was terminated for the stated reason that she had abandoned her position. The notice of removal, sent via certified mail, was dated February 27, 1991. Appellant filed her formal complaint of November 25, 1991.

On January 22, 1992, the agency issued a final decision rejecting appellant's complaint. The agency stated that appellant's October 7, 1991 initiation of EEO counseling was 187 days after the April 3, 1991 incident of alleged discrimination. Therefore, citing 29 C.F.R. § 1613.214(a)(1)(i), the agency found appellant's complaint untimely.

Appellant appealed the final agency decision to the Commission. The previous decision affirmed the final agency decision. Appellant v. Anthony M. Frank, Postmaster General, United States Postal Service (Southern Region), EEOC Appeal No. 01921543 (April 15, 1992). First, the previous decision found that appellant had failed to initiate EEO counseling within the thirty-day time limit prescribed by EEOC Regulations. See 29 C.F.R. §1613.214(a)(1)(i). Second, the previous decision found that appellant had not shown that her medical condition was sufficiently debilitation to justify an extension of the thirty-day time limit. [FN3] See 29 C.F.R. §1613.214 (a)(4). Accordingly, the previous decision concluded that the agency properly rejected appellant's complaint as untimely. See 29 C.F.R. §1613.215(a)(4).

In her request to reopen, appellant claims that she did not abandon her job. She claims that the December 20, 1990 absence inquiry, a precursor to her April 3, 1991 removal, was complicated by the agency's assertion that she had no job until her workers' compensation claim was approved. Appellant states that during the absence inquiry, she was depressed, had headaches, suffered from hypertension and was confused. She contends that only after receiving psychiatric help, on June 3, 1991, was she able to cope with her problems and, therefore, file her EEO complaint.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that appellant's request to reopen fails to meet any of the criteria set forth by 29 C.F.R. §1613.235(b). It is therefore the decision of the Commission to deny appellant's request to reopen.

Appellant has not presented any new and material evidence that was not readily available when the previous decision was issued. Indeed, everything presented in appellant's request to reopen was clearly accessible prior to the previous decision. Appellant has not shown that the previous decision constituted an erroneous interpretation of law, regulation or established policy. Finally, appellant has failed to show that the previous decision is of such exceptional nature as to have effects beyond the actual case at hand. Accordingly, her request to reopen is denied.

By notice dated February 27, 1991, appellant was informed that she would be terminated effective April 3, 1991. Yet, appellant did not initiate EEO counseling until October 7, 1991, well beyond the thirty-day time limit imposed by EEOC Regulations. See 29 C.F.R. §1613.214(a)(1)(i). Most of the arguments presented in appellant's request to reopen address the merits of her complaint. Since appellant's complaint was rejected on procedural grounds, these arguments are irrelevant. Appellant also reiterates her argument, first addressed on appeal, that her medical condition contributed to her delay. The previous decision concluded that appellant's condition, as described, did not warrant an extension of the time period to initiate counseling. On request to reopen, the Commission agrees. While we are sympathetic to appellant's hardship, she was not shown sufficient incapacity to justify a seven month extension in the prescribed time period for contacting and EEO counselor. Assuming, as asserted in her request to reopen, that appellant lacked the capacity to pursue her EEO claim prior to receiving psychiatric care on June 3, 1991, she still waited until over four months after receiving treatment to initiate EEO counseling. Appellant has not presented circumstances warranting an extension of the prescribed time limit for initiating EEO counseling. See 29 C.F.R. §1613.214(a)(4). Accordingly, the Commission hereby affirms the agency's decision to reject appellant's complaint as untimely.

CONCLUSION

After a review of appellant's request to reopen, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet any of the criteria of 29 C.F.R. §1613.235(b). It is therefore the decision of the Commission to deny appellant's request. The decision of the Commission in EEOC Appeal No. 01921543 (April 15, 1992) remains the Commission's final decision in this matter. There is no further right of administrative appeal from the decision of the Commission on this request to reopen.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION (P/A1092)

This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) CALENDAR DAYS of 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.

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").

FN1. The Commission acknowledges a recent change in the individual serving as Postmaster General.

FN2. 29 C.F.R. Part 1614(57 Fed. Reg. 12634) became effective October 1, 1992. This rule revises the way federal agencies and the Equal Employment Opportunity Commission will process administrative complaints and appeals of employment discrimination filed by federal employees and applicants for federal employment.

FN3. In her appeal, though not specifically offering this information as an explanation for her delay in seeking EEO counseling, appellant noted that she had suffered from stress and depression.

FOR THE COMMISSION:

Frances M. Hart
Executive Director
Executive Secretariat