01991266_r
10-28-1999
Randolph S. Koch, Appellant, v. Arthur Levitt, Jr., Chairman, Securities and Exchange Commission, Agency.
Randolph S. Koch, )
Appellant, )
)
v. ) Appeal No. 01991266
) Agency No. 19-98
Arthur Levitt, Jr., )
Chairman, )
Securities and Exchange )
Commission, )
Agency. )
______________________________)
DISMISSAL OF APPEAL
By Notice of Appeal received via facsimile on December 1, 1998, appellant
filed an appeal with this Commission from the October 26, 1998 final
agency decision (FAD) dismissing his EEO complaint of unlawful employment
discrimination.
By regulation, appeals to the Commission must be filed within thirty
(30) calendar days after an appellant receives notice of the final agency
decision. 29 C.F.R. �1614.402(a). A document shall be deemed timely if
it is 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).
Appellant acknowledged receipt of the FAD on October 28, 1998. Therefore,
in order to be considered timely, appellant had to file his appeal no
later than November 27, 1998. A review of the FAD, however, reveals
that the agency failed to attach a notice of appellant's appeal rights.
The agency contends that appellant knew of the thirty-day time limitation,
because he has filed several prior appeals with the Commission. Appellant
also received a copy of the appeal rights and forms from his EEO
Counselor, according to the agency, which he attached to his appeal.
Further, the agency notes that appellant is an attorney, who generally
should be aware of timely appeal requirements.
Commission records reveal that appellant has filed eleven (11) prior
appeals, and five (5) requests for reconsideration. Clearly, appellant
had constructive knowledge of the applicable time limits. C.f. Santiago
v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995).
Further, appellant admits on appeal that he found a blank appeal form in
documents given to him by his EEO Counselor. Accordingly, the agency's
failure to include a copy of appeal rights with its FAD does not excuse
appellant's untimely filing.
Appellant also contends that the time limit to appeal should be tolled
because he suffers from sleep apnea. When an appellant claims that a
physical condition prevents him from meeting a particular filing deadline,
the Commission has held that the appellant must be so incapacitated by the
condition as to render him physically unable to make a timely filing. See
Sohal v. United States Postal Service, EEOC Request No. 05970461 (Apr. 2,
1997); Crear v. United States Postal Service, EEOC Request No. 05920700
(Oct. 29, 1992); Zelmer v. United States Postal Service, EEOC Request
No. 05890164 (Mar. 8, 1989).
Appellant attached diagnoses from his physician, confirming appellant's
sleep apnea as a cause for �excessive day-time sleepiness.� The
documentation does not, however, state that the syndrome left appellant
incapacitated. To the contrary, appellant admits on appeal that he cannot
prove his incapacity, or even an inability to work. If appellant can
function as an attorney, then clearly he can function sufficiently to
file a timely appeal. Appellant has not offered adequate justification
for an extension of the applicable time limit for filing his appeal.
Accordingly, appellant's December 1, 1998 appeal is DISMISSED. See 29
C.F.R. ��1614.402 and 1614.604.
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:
October 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations