01a04064
09-26-2000
Emmanuel A. Ibrahim, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Emmanuel A. Ibrahim v. Department of the Treasury
01A04064
September 26, 2000
.
Emmanuel A. Ibrahim,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A04064
Agency No. 00-4132
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the March 8,
2000 final agency decision dismissing his EEO complaint of unlawful
employment discrimination.<1>
A copy of the certified mail return receipt card reveals that the final
agency decision was received at complainant's address of record on March
13, 2000. A review of the decision reveals that the agency properly
advised complainant that he had thirty (30) calendar days after receipt
of its final decision to file his appeal with the Commission. Therefore,
in order to be considered timely, complainant had to file his appeal no
later than April 12, 2000.
The record reflects that complainant signed his appeal on April 27, 2000,
and that it was received at the Commission on May 12, 2000. The appeal
was sent via regular mail, however, the postmark date is illegible.
By regulation, appeals to the Commission must be filed within thirty (30)
calendar days after a complainant receives the final agency decision.
29 C.F.R. � 1614.402(a).
A document shall be deemed timely if it is delivered in person or
postmarked before the expiration of the applicable filing period, or if,
in the absence of a legible postmark, it is received by mail within five
(5) days from the expiration of the applicable filing period. See 29
C.F.R. �1614.604 (a).
In this case, the record reflects that complainant received the final
agency decision on March 13, 2000. The record indicates that complainant
filed an appeal from the agency's final decision in an envelope with an
illegible postmark, which was received by the Commission on May 12, 2000.
The thirty day period for filing an appeal expired on April 12, 2000.
Since the postmark in the present case was illegible, complainant's
appeal would be considered timely filed if received by April 17, 2000.
The record shows that complainant's appeal was received by the Commission
on May 12, 2000. Accordingly, complainant's appeal which was dated April
27, 2000, and received by the Commission on May 12, 2000, was untimely.
In complainant's letter of appeal, he requested an extension of the
time limitation for filing an appeal. Specifically, complainant stated
that on March 21, 2000, he was required to attend senior inspector
school and upon his return he learned his father was gravely ill with
cancer and he went to California to be with his father for several days.
The Commission's regulations governing the computation of time limits
allow for waiver and/or equitable tolling. 29 C.F.R. � 1614.604(c).
We find that complainant has failed to submit adequate justification
to invoke waiver or equitable tolling of the limitations period.
Specifically, complainant has not shown that he was completely unable,
during the entire filing period, from initiating an appeal. See Benson
v. U.S. Postal Service, EEOC Request No. 05940492 (November 3, 1994)
(Commission found that complainant failed to submit adequate justification
for waiving 30-day filing deadline where she asserted that due to her
husband's illness and her father's apparently concurrent illness, she
had to assume more family responsibility which, coupled with her college
attendance, prevented her from filing her appeal in a timely manner).
Here, although complainant asserts that he assisted his father through
his illness, he has not shown that this support was such that he was
prevented by circumstances beyond his control from filing his appeal. Id.
Accordingly, the Commission finds that complainant has not submitted
adequate justification for waiving the thirty-day filing deadline in
this case. The appeal is untimely and is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 26, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.