0120090344
02-06-2009
Simon Vivens, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Simon Vivens, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090344
Agency No. 1E802002407
DISMISSAL OF APPEAL
By Notice of Appeal transmitted by facsimile on October 16, 2008,
complainant filed an appeal with this Commission from the February
29, 2008 final agency decision (FAD) concerning his 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., the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him, creating a
hostile work environment, on the basis of race (African), color (black),
national origin (American), age (60), disability (not specified) and
retaliation (prior protected EEO activity) when: (1) on May 24, 2007,
someone placed a black stuffed monkey with sunglasses in his work area;
and (2) on July 18, 2007, someone placed a rubber chicken on the gate to
the re-wrap cage with the chicken's head stuck in the wire of the gate.
Complainant writes in his appeal that he received the Final Agency
Decision (FAD) in "March 2008." According to the agency, the FAD was
mailed to the complainant on February 29, 2008. A review of the FAD
reveals that the agency properly advised complainant that he had thirty
(30) calendar days after receipt of its final decision to file his
appeal with the Commission. Assuming that complainant received the
FAD no later than March 31, 2008, in order to be considered timely,
complainant should have filed his appeal no later than April 30, 2008.
As justification for the delay in filing his appeal, complainant submitted
an undated note from his attending physician stating, in relevant part,
that complainant has been under her care "for corneal edema and rejection
of a corneal transplant in his right eye. Surgery date 03/17/2008.
This leaves him visually impaired in his right eye causing him to have
a difficult time reading or driving."
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
establishes that he 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).
The evidence of record does not establish that complainant has met
this standard.1 Accordingly, complainant's October 22, 2008 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
February 6, 2009
Date
1 We note that even if complainant had been so incapacitated that he
could not meet an April 30, 2008 deadline, he does not explain why he
was unable to file a Notice of Appeal prior to October 16, 2008.
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0120090344
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090344