01a02135
05-24-2000
Katherine Jenkins, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Katherine Jenkins, )
Complainant, )
)
v. ) Appeal No. 01A02135
William M. Daley, ) Agency No. 99-54-00944
Secretary, )
Department of Commerce, )
Agency. )
____________________________________)
DISMISSAL OF APPEAL
By Notice of Appeal postmarked January 14, 2000, complainant filed an
appeal with this Commission from the December 7, 1999 final agency
decision (FAD) dismissing her EEO complaint of unlawful employment
discrimination.<1>
On appeal, complainant states that she received the FAD at her address of
record on December 9, 1999. 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 January 10, 2000. Complainant notes that her
appeal is untimely, but states that she was incapacitated due to a work
related injury. In support of her assertion, complainant's appeal
was submitted by facsimile with a note purportedly from her husband
stating that complainant was incapacitated. The Commission has held
that a complainant's failure to meet a filing deadline will be excused
for incapacitation only if the complainant establishes that she was so
physically or emotionally incapacitated that she was unable to make a
timely filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 9,
1989) and Hedgepath v. USPS, EEOC Request No. 05940478 (January 6, 1995).
We find, however, that the evidence presented in the present case is
insufficient to establish that complainant was so incapacitated as to
be unable to timely file her appeal. We find that complainant has not
offered adequate justification for an extension of the applicable time
limit for filing her appeal. Accordingly, complainant's January 14,
2000 appeal is hereby DISMISSED. See 64 Fed. Reg. 37,644, 37,659, 37,
661 (1999)(to be codified and hereinafter referred to as 29 C.F.R. ��
1614.402 and 1614.604).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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:
May 24, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.