0120091558
05-29-2009
Joyce Brundage, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joyce Brundage,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091558
Agency No. 200H06302008100485
DISMISSAL OF APPEAL
By Notice of Appeal postmarked February 25, 2009, complainant filed an
appeal with this Commission from the September 25, 2008 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.
A copy of the certified mail return receipt card reveals that the FAD
was received at complainant's address of record on October 10, 2008.
A review of the FAD reveals that the agency properly advised complainant
that she had thirty (30) calendar days after receipt of its final
decision to file her appeal with the Commission. Therefore, in order
to be considered timely, complainant had to file her appeal no later
than November 10, 2008. Complainant asserts she sent it to the court
of appeals "by mistake." The FAD clearly gave rights to the Commission,
and also stated that complainant could appeal to the court "if no appeal
to the EEOC has been filed." (Underline in original.) Complainant
also submitted documentation showing she had emergency surgery and was
released for return to work on January 5, 2009. 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 Davis v. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992). Complainant's medical documentation
is insufficient to show that she was so incapacitated that she could not
file her appeal sooner. Complainant has not offered adequate justification
for an extension of the applicable time limit for filing her appeal.
Accordingly, complainant's February 25, 2009 appeal is hereby dismissed.
See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 29, 2009
__________________
Date
2
0120091558
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091558