0520160091
03-18-2016
Yvette H.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Yvette H.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.
Request No. 0520160091
Appeal No. 0120132568
Agency No. EOI201200749
DECISION ON REQUEST FOR RECONSIDERATION
Complainant requested reconsideration of the decision in EEOC Appeal No. 0120132568 (September 22, 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 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 the date on which it was mailed, September 22, 2015. Complainant is presumed to have received the previous decision no later than September 27, 2015. Thirty days from that date is October 27, 2015. As evidenced by the post mark date, Complainant mailed the request on November 16, 2015, which was beyond the 30-day limit set by regulation. As justification for the late request submission, Complainant stated she "had health concerns including eye surgery, follow up treatment and other serious health concerns in September and October 2015." However, Complainant did not submit any medical documentation to support her "serious health concerns." When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. United States Postal Service, EEOC Request No. 05890164 (March 8, 1989). Nothing in the statement provided by complainant supports a finding that she was so incapacitated throughout the applicable period as to prevent her from timely filing her request.
For the foregoing reasons, the Complainant's request is denied. The decision in EEOC Appeal No. 0120132568 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
March 18, 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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