01985870
09-10-1999
Joseph K. Fitzpatrick, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Joseph K. Fitzpatrick v. Department of the Air Force
01985870
September 10, 1999
Joseph K. Fitzpatrick, )
Appellant, )
)
v. ) Appeal No. 01985870
) Agency No. LAOJ98057
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
Upon review, the Commission finds that appellant's complaint was properly
dismissed pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely
EEO contact. Appellant contacted an EEO Counselor on May 6, 1997,
regarding incidents of alleged discrimination commencing in May 1985, up
to and including his separation from agency employment in November 1985;
and various purported post-employment agency actions including matters
relating to an injury claim and a Freedom of Information Act request,
from 1986 through November 1994.
On appeal, appellant argues that his delay in contacting an EEO
Counselor was attributable to agency negligence "coupled with [his]
mental infirmity." We have consistently held, in cases involving
physical or mental health difficulties, that an extension is warranted
only where an individual is so incapacitated by his condition that
he is unable to meet the regulatory time limits. See Crear v. United
States Postal Service, EEOC Request No. 05920700 (October 29, 1992);
Weinberger v. Department of the Army, EEOC Request No. 05920040 (February
21, 1992); Hickman v. Department of the Navy, EEOC Request No. 05910707
(September 30, 1991); 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). The Commission
finds, however, that the record in this case is insufficient to establish
that appellant was so incapacitated as to be unable to timely contact an
EEO Counselor. Furthermore, appellant failed to present any evidence to
support his contention of agency negligence. Accordingly, the agency's
final decision dismissing appellant's complaint is AFFIRMED.
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:
Sept. 10, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations