0120131360
06-25-2013
Pai-Yin Pan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Pai-Yin Pan,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120131360
Agency No. 1F-946-0142-10
DISMISSAL OF APPEAL
By Notice of Appeal dated January 31, 2013, and date-stamped as received by the Commission on February 3, 2013, Complainant filed an appeal with this Commission from the December 7, 2012 final action concerning an 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In response to Complainant's appeal, the Agency argues that the appeal was untimely filed. Specifically, the Agency stated that on December 17, 2012, it issued a final action implementing an EEOC Administrative Judge's finding of no discrimination. The record reflects that that the Agency sent the final action to Complainant's and Complainant's representative's address of record. A review of the final action reveals that the Agency properly advised Complainant that she had thirty calendar days after receipt of its final action to timely file an appeal with the Commission. However, Complainant did not file her appeal until January 31, 2012.
In her EEOC Form 573 "Notice of Petition/Appeal," Complainant acknowledged receipt of the final action "about December 30, 2012." We note that December 30, 2012 fell on a Sunday. Therefore, the Commission will presume that the reference to receipt "about" December 30, 212, can reasonably be construed as the following day, which was Monday, December 31, 2012.
We find, however, that the instant appeal is still untimely filed. The Form 573 is dated by Complainant's representative on "1/31/13," which is more than 30 days after Complainant's stated receipt date of "about 12/30/12, as well as more than 30 days after Monday, January 31, 2012.
Moreover, we note that, on appeal, Complainant's representative provided a certificate of service for the appeal, dated "1/31/13." The certificate of service contains the following pertinent entry:
Note:
This appeal is submitted late due to illness by the claimant's assistant/representative. Please excuse any untimeliness.
When a complainant claims that a physical condition prevents him or her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render him or her physically unable to make a timely filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). There is nothing in the record reflecting an incapacity during the applicable period to prevent the timely filing of an appeal. Therefore, Complainant has not offered adequate justification for an extension of the applicable time limit for filing an appeal.
Accordingly, Complainant's January 31, 2013 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
June 25, 2013
__________________
Date
2
0120131360
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131360
5
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