Judge Joseph Bianco
Mail handler Martin suffers "severe and chronic depression." A June 2011 arbitral award upheld the U.S. Postal Service’s (USPS) termination of Martin for unpermitted absence for longer than six weeks, and for failure to follow instructions to return to work or provide documents explaining his absence. The EEOC dismissed his Oct. 21, 2011, formal complaint because he did not contact the EEOC until July 29, 308 days after his removal, whereas federal regulations require the EEOC be contacted within 45 days of the discriminatory action. Distinguishing Tsai v. Rockefeller Univ. and Benn v. Greiner, the court dismissed Martin’s lawsuit under the Rehabilitation Act alleging disability discrimination grounded on his depression. In doing so, it rejected Martin’s assertion that he was entitled to equitable tolling of the 45-day requirement pursuant to 29 CFR §1614.105(a)(2). Record evidence showed that despite his alleged depression, Martin could function in society and understood his legal rights. Most importantly, Martin filed a grievance and testified before an arbitrator on May 26, 2011. His participation in that legal process concerning his employment showed him able to initiate contact with the EEOC following his termination.
