0520150504
01-21-2016
Nevada R.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nevada R.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.
Request No. 0520150504
Appeal No. 0120132351
Hearing No. 490-2011-00014X
Agency No. USA201000344
DECISION ON REQUEST FOR RECONSIDERATION
Complainant requested reconsideration of the decision in EEOC Appeal No. 0120132351 (June 5, 2015). 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).
By regulation, requests for reconsideration must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a Certificate of Mailing indicating that, for purposes of timeliness, the Commission will presume that the decision was received within five (5) calendar days of June 5, 2015, the date on which it was mailed. Therefore, Complainant is presumed to have received the previous decision no later than June 10, 2015. Thirty days from that date is July 10, 2015.
As evidenced by the post mark date, Complainant mailed her request for reconsideration on August 6, 2015, which was beyond the 30-day limit set by regulation. As justification for the late request submission, Complainant stated that she had surgery on June 1, 2015, and "was home recovering through June 15th." She states she did not get to her mail for three weeks. We have consistently held, in cases involving health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). In this case, Complainant has not provided evidence of such a justification. Moreover, even assuming Complainant was recovering from her surgery until June 15, as she states, her August 6, 2015 filing was still well beyond the 30-day filing period.
For the foregoing reasons, Complainant's request is dismissed. The decision in EEOC Appeal No. 0120132351 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 (0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 21, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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