01984223
10-05-1999
Dennis J. McQuade, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Dennis J. McQuade, )
Appellant, )
)
v. ) Appeal No. 01984223
) Agency No. 95(20)OR
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
______________________________)
DECISION
On April 25, 1998, appellant filed an appeal with this Commission from a
March 12, 1998, final agency decision (FAD) finding no discrimination.
Upon review, the Commission finds that appellant received the FAD on
March 16, 1998. Review of the FAD reveals that the agency correctly
advised appellant to file an appeal within thirty (30) calendar days
of receipt of the FAD. To be timely, appellant had to file his appeal
no later than Wednesday, April 15, 1998. See 29 C.F.R. �� 1614.402(a)
and 604(d). In justification of his untimely appeal, appellant explained
that during March and April of 1998, he suffered from �a variety of
ailments� including: depression; a sinus/respiratory infection; peptic
ulcer disease; erosive gastritis; and gastroesphogeal reflex disease.
Appellant also included an unsworn �declaration� from a woman, alleged to
be engaged to appellant, who certified that appellant was incapacitated
and bedridden �most of the time.� Appellant contends that his depression
was �seriously exacerbated� by his receipt of the FAD. However, even
considering the alleged severity of appellant's conditions, appellant
failed to provide any evidence from a medical doctor or an attending
physician which would attest to the veracity of his justification.
See Sohal v. United States Postal Service, EEOC Request No. 05970461
(April 24, 1997); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992); Johnson v. Department of Health and
Human Services, EEOC Request No. 05900873 (October 5, 1990); and Zelmer
v. United States Postal Service, EEOC Request No. 05890164 (March 8,
1989). Moreover, by May 1998, appellant was sufficiently recovered from
these various ailments to craft a thirty one page handwritten brief in
support of his appeal.
The Commission finds that appellant's justification for his untimely
appeal lacks credibility. Accordingly, appellant's appeal is hereby
DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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").
FOR THE COMMISSION:
October 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations