0120080122
06-22-2010
Jane C. Kimble, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jane C. Kimble,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120080122
Agency No. PHI050266SSA
DISMISSAL OF APPEAL
By Notice of Appeal postmarked September 6, 2007, Complainant filed an
appeal with this Commission from the July 31, 2007 Final Agency Decision
(FAD) concerning her EEO complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In her Notice of Appeal, Complainant asserts that her Appeal is untimely
by "a day or two," but states that three (3) days before she received
the FAD she was issued a suspension at work, which caused her to be
upset and to visit her psychiatrist, as well as to be suspicious about
the timing of the suspension. She further states: "Also, during this
time, I aggravated my back at work requiring opiate pain medication.
I pray you find these events good cause to be a day or few late."
Giving Complainant the benefit of the doubt and assuming that she
received the FAD five (5) days after it was issued (namely, August 6,
2007), in order to be considered timely, Complainant had to file her
appeal no later than September 5, 2007.
Complainant admits that she is untimely, but requests waiver of the time
limits. When a Complainant claims that a medical condition prevented 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 unable to make a timely filing. See Zelmer
v. U.S. Postal Serv., EEOC Request No. 05890164 (March 8, 1989). The
same is true regarding claims of incapacity related to psychiatric or
psychological conditions. See Crear v. U.S. Postal Serv., EEOC Request
No. 05920700 (October 29, 1992). Complainant has not shown that her
medical condition(s) rendered her so incapacitated that she could not
file her Notice of Appeal in a timely manner. As Complainant has not
offered adequate justification for an extension of the applicable time
limit, Complainant's September 6, 2007 appeal is hereby dismissed.
See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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
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 (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
__6/22/10________________
Date
2
0120080122
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080122