0520130003
02-22-2013
Flordeliza F. McCurdy, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Flordeliza F. McCurdy,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520130003
Appeal No. 0120103645
Agency No. 1F-957-0067-09
DENIAL
Complainant timely requested reconsideration of the decision in Flordeliza F. McCurdy v. U.S. Postal Service, EEOC Appeal No. 0120103645 (July 30, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Our previous decision dismissed Complainant's appeal as untimely filed. We noted that Complainant acknowledged that she had received the Agency's final decision on August 14, 2010, but did not file her appeal until September 14, 2010, one day past the 30-day deadline for filing an appeal. We further noted that Complainant had been properly advised of her appeal rights by the Agency, including the 30-day filing deadline.
In her request for reconsideration, Complainant argues that her appeal in fact was timely. Complainant argues that because she received the Agency's final decision on August 14, 2010, which was a Saturday, her time to file did not begin to run until the next business day, which was Monday, August 16, 2010; by that reckoning, Complainant's appeal would be timely. In support of her argument, Complainant cites the Commission's regulation found at 29 C.F.R. � 1614.604(d), on computation of time, which states:
The first day counted shall be the day after the event from which the time period begins to run and the last day of the period shall be included, unless it falls on a Saturday, Sunday or Federal holiday, in which case the period shall be extended to include the next business day.
Complainant, however, misapprehends the import of the regulation on which she relies. The regulation does not extend the filing period with regard to the date on which the triggering event, i.e., her receipt of the Agency's final decision, occurred. Rather, the regulation extends the filing period if the last day of the filing period, counted from the day after the triggering event, falls on a Saturday, Sunday, or federal holiday. Complainant received the Agency's final decision on Saturday, August 14, 2010. The thirtieth day thereafter was Monday, September 13, 2010. That date fell on neither a Saturday, Sunday, or federal holiday. Accordingly, our regulation regarding computation of time did not compel extension of the filing period to the next business day. Accordingly, Complainant has not shown that our previous decision clearly erred in dismissing her appeal as untimely filed.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120103645 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
February 22, 2013
Date
2
0520130003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130003