Angela M. Vanover v. United States Postal Service
01A53086
June 20, 2005
.


Angela M. Vanover,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 01A53086

Agency No. 4C450000305

DECISION
INTRODUCTION

Angela M. Vanover (“complainant”) filed a timely appeal with this
Commission from the agency's decision dated January 31, 2005, dismissing
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.
The appeal is accepted pursuant to 29 C.F.R. § 1614.405.

ISSUE PRESENTED

Whether the agency properly dismissed the complaint for untimeliness
pursuant to 29 C.F.R. § 1614.107(a)(2) for failing to file a formal
complaint within fifteen (15) days after receipt of the Notice of Right
to File a Formal Complaint.

BACKGROUND

Complainant contacted an EEO counselor on June 10, 2004 regarding her
claim of unlawful employment discrimination.  After informal efforts to
resolve the matter were unsuccessful, the agency provided complainant
with the Notice of Right to File a Formal Complaint, which she received on
December 15, 2004.  In her complaint filed on January 4, 2005, complainant
alleged that she was subjected to discrimination on the basis of reprisal
for prior EEO activity when on August 30, 2004, she was ordered to take
a one and one half hour lunch after having been previously told to not
take a lunch, thereby eliminating her ability to accrue overtime pay.
On January 31, 2005, the agency issued its final decision (FAD)
dismissing complainant's complaint as untimely pursuant to 29 C.F.R. §
1614.107(a)(2).  Specifically, the agency found that complainant failed
to file a formal complaint within fifteen (15) days of receiving the
Notice of Right to File a Formal Complaint.

ANALYSIS AND FINDINGS

Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to the
untimely filing of the formal complaint.

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.  29 C.F.R. § 1614.107(a)(2) provides that the
agency shall dismiss a complaint that fails to comply with the applicable
time limits contained in §§ 1614.105, 1614.106, and 1614.204(c), unless
the agency extends the time limits in accordance with § 1614.604(c).

The record discloses that complainant received the notice of right
to file a formal complaint by certified mail on December 15, 2004.
Although the notice indicated that complainant had to file a formal
complaint within fifteen (15) calendar days of its receipt, complainant
did not file her formal complaint until January 4, 2005, which is beyond
the limitation period.

On appeal, complainant offers two grounds on which she believes the
Commission should equitably extend the filing time for a formal complaint
pursuant to 29 C.F.R. § 1614.604(c).  Complainant first contends that
she was unable to meet the deadline because she was on maternity leave
and had recently undergone major surgery.  Additionally, complainant
states that, after having been granted time extensions in the past,
she was under the assumption that her request for an extension by the
agency had been granted after having allegedly contacted the agency's
EEO office by telephone and leaving a recorded message (that was never
returned) requesting such an extension.

In response, the agency argues that although complainant was out on
maternity leave, she failed to produce any evidence showing that she
was so incapacitated as to render her unable to make a timely filing.

A.  Physical and Mental Health Difficulties

In regard to her maternity leave and health problems, complainant
has not offered adequate justification to warrant an extension of
the time limit for filing the complaint.  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
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992).  Moreover, we have held that the mere
fact that a physical or mental condition warrants leave is insufficient
evidence of incapacitation.  Cross v. United States Postal Service, EEOC
Appeal No. 01962530 (March 17, 1998).  As a general rule, an individual
is required to submit medical evidence as to her complete inability
to timely perform the tasks involved in the filing process in order to
trigger the tolling principle.  See Placides v. Department of Defense,
EEOC Appeal No. 01A03114 (July 12, 2000); Ahmad v. United States Postal
Service, EEOC Request No. 05970979 (July 9, 1999).  Although complainant
argues that her physical health resulted in an inability to timely
file the complaint, she presents no argument or evidence as to how her
pregnancy or surgery resulted in physical conditions that affected her
timely receipt of the notice of final interview or ability to file a
timely complaint within fifteen days.  Specifically, the record does
not contain any medical evidence regarding her condition or the dates
of her incapacitation relative to the filing of her complaint, nor does
complainant's brief in support of her appeal provide a reasonable basis
for inferring that they have affected her ability to timely file.

We acknowledge that the complaint states in her brief that “if a doctor's
note is needed, [she] can provide one.”  However, as set out in EEO
Management Directive 110, Ch. 9 § VI.A.3 (1999), the Commission as a
general rule will not consider new evidence on appeal unless there is
an affirmative showing that the evidence was not reasonably available
prior to the investigation or during the hearing process.  Additionally,
although the Commission is given the right to supplement the record
pursuant to 29 C.F.R. § 1614.405(b), we have chosen to exercise this
right “only in rare instances to avoid a miscarriage of justice,” such
as when the record is so incomplete as to require remand to the agency
in order to complete the investigation.  EEO Management Directive 110,
Ch. 9 § V.C (1999).

Here, the complainant had the ability to submit evidence regarding her
medical conditions during her original extension request, but failed
to do so.  Moreover, we find that the record is not so incomplete as
to preclude an inference based on a preponderance of the evidence that
complainant was not sufficiently incapacitated to prevent her timely
filing of the complaint.  See 29 C.F.R. § 1614.405(a).  Again, not only
does complainant fail to provide any tangible evidence regarding her
claims, but she also fails to provide the Commission with any detailed
explanation as to how her pregnancy or unspecified surgical procedure
would meet the standard set out in Davis v. United States Postal Service,
EEOC Request No. 05980475 (August 6, 1998).  The record reveals that the
complainant was physically and mentally capable of submitting her formal
complaint by January 4, as well as capable of allegedly requesting an
extension by phone at some unspecified point in the interim.  Assuming
for the sake of argument that complainant was permitted to submit a
supplementary record, there is no indication that it would materially
alter the record in a meaningful way necessary to avoid a miscarriage
of justice, absent exceptional circumstances which we do not find to be
reflected in complainant's appeal.

B.  Assumed Extension

In regard to her request for an extension from the agency's EEO office
via telephone, complainant also has not offered adequate justification
to the Commission to warrant an extension of the time limit for filing
the complaint.  The burden of diligently initiating and tracking an
extension and establishing before the Commission that the extension was
in fact granted rests solely with the complainant.  Absent “pervasive
evidence” that an extension has been granted, a complainant's assertions
that she was waiting for a return phone call or relying on a statement or
inference by an EEO counselor regarding an extension are not grounds for
equitable tolling.  See Norris v. Department of the Navy, EEOC Appeal
No. 01976711 (September 23, 1999) (finding that complainant failed to
produce sufficient evidence of an extension of the filing period where
she had timely received the Notice of Right to File a Formal Complaint
and the EEO counselor had never explicitly granted such an extension).

The record reveals that complainant had constructive notice of the time
regulations.  As discussed in detail above, we have found no documented
evidence that complainant was prevented from filing within the deadline.
More importantly, we find that the complainant's statement that she
relied on a non-response from the agency's EEO office at an unspecified
date does not constitute the “pervasive evidence” needed to establish
adequate reliance on a purported extension.  Thus, we conclude that
complainant has not provided sufficient evidence to establish that either
a extension should have been or was in fact issued following her inquiry.

CONCLUSION

Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.


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 (S0900)

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:

          June 20, 2005
______________________________     __________________
Carlton M. Hadden, Director      Date
Office of Federal Operations