0120102489
09-07-2010
Yvette C. Square, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Yvette C. Square,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120102489
Agency No. 1F-901-0003-10
DECISION
By Notice of Appeal postmarked April 8, 2010, Complainant filed an appeal with this Commission from the March 3, 2010 final Agency decision (FAD) concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
Whether Complainant's appeal was filed in an untimely manner and should be dismissed.
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission shall dismiss an appeal from a final agency decision as untimely if the appeal is not filed within thirty (30) days of receipt of the agency's dismissal, final action, or decision. See 29 C.F.R. � 1614.402(a); 29 C.F.R. � 1614.403(c). Complainant acknowledged in her Notice of Appeal that she received the FAD on March 6, 2010. 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, she had to file her appeal no later than April 5, 2010. Complainant did not file her appeal until April 8, 2005; therefore, she exceeded the time limitation period.
On appeal, Complainant requests "tolling due to medical conditions beyond my control, intentional harm caused me at the hands of the [Agency] chronic hypertension, major depression (clinical), and anxiety, diagnosis prior to July 2003." However, she does not provide any further explanation for the delay in filing her appeal, and she has not submitted any documentation in support of her request.1 Therefore, we find that Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal.
Accordingly, Complainant's appeal is hereby DISMISSED.
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
___9/7/10_______________
Date
1 When confronting untimeliness issues, the Commission has consistently held that in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by their condition that they are unable to meet the regulatory time limits. Crear v. United States Postal Serv., EEOC Request No. 05920700 (October 29, 1992); Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (March 8, 1989). As note above, Complainant has made no such showing here.
??
??
??
??
2
0120102489
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102489