U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mahalia P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120161137 Agency No. 4G752004516 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated January 13, 2016, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Mail Letter Carrier at the Agency's Post Office facility in Point, Texas. On December 22, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of disability when, on March 10, 2015, she was "forced" to resign from her position (constructive discharge claim). The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record discloses that the alleged discriminatory event occurred on March 10, 2015, but Complainant did not initiate contact with an EEO Counselor until November 4, 2015, which is beyond the forty-five (45) day limitation period. On appeal, Complainant implies that she was unaware of the time limits for seeking EEO counseling. The record contains a sworn statement that an EEO poster was posted on a bulletin board at the facility where Complainant was employed. The poster had the time limits for contacting an EEO counselor and information on initiating the EEO process. It is well-established by Commission precedent that EEO posters on display in the workplace constitute a presumption of constructive notice of EEO time limits. Drake v. Department of Justice, EEOC Appeal No. 0120131871 (August 5, 2013); Tutwittler v. U.S. Postal Service, EEOC Appeal No. 0120121325 (April 18, 2013); Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993). Here, Complainant has failed to rebut this presumption. Complainant also argues that her delay in seeking EEO counseling should be excused because she suffered from post-traumatic stress disorder (PTSD) and depression as a result of a work-related accident that occurred in January 2015. She submits a doctor's statement dated October 16, 2015, supporting these diagnoses. Nonetheless, we note that Complainant was working at the time she resigned in March 2015, and that she pursued a grievance on the matter. When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. United States Postal Service, EEOC Request No. 05890164 (March 8, 1989). Nothing in the statements provided by Complainant supports a finding that she was so incapacitated throughout the applicable period as to prevent her from timely contacting an EEO counselor. Complainant has therefore failed to present adequate justification, pursuant to 29 C.F.R. § 1614.604(c), for extending the filing period. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations April 29, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161137 4 0120161137