0520120010
12-14-2011
James Woo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
James Woo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520120010
Appeal No. 0120112262
Agency No. 1C-191-0003-11
DENIAL
Complainant timely requested reconsideration of the decision in James Woo
v. U.S. Postal Service, EEOC Appeal No. 0120112262 (August 18, 2011).
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).
BACKGROUND
The facts and procedural background are set forth in the previous
decision and are incorporated herein by reference. We note the
following salient facts: Complainant, on April 8, 2010, was issued a
notice of removal, effective May 14, 2010. Complainant did not contact
an EEO Counselor until October 31, 2010. Complainant indicated that
although he received the termination letter, he was too sick to read
it or to contact the Agency. According to Complainant, he was sick
from January 4 through October 7, 2010, with acute “labyrnthitis”
as well as “uncontrollable hiccups/coughing, and vertigo, unable to
walk, vomiting and visual impairment.” The Agency indicated that he
had not been to work since May 13, 2009. The previous decision noted
that the record only contained a hospital discharge sheet referencing
vertigo which was dated January 5, 2010, and provided to the Agency in
November 2010. Consequently, the previous decision found that Complainant
did not establish that he was “incapacitated or received any medical
care during the time period at issue, or was unable to contact an EEO
counselor sooner.” The Agency’s final decision, which had dismissed
Complainant’s complaint for being untimely, was affirmed.
ARGUMENTS ON RECONSIDERATION
In his reconsideration request, Complainant attempts to provide the
evidence that the previous decision found was lacking. In this regard,
he provided an October 7, 2010, “Certificate to Return to Work or
School” that was signed by his doctor. The certificate indicated that
Complainant had been in the doctor’s care from January 6 to October 7,
2010 for the treatment of vertigo. In the remarks section, the doctor
wrote: “can’t walk[,] vision blurred[,] fit for full duty. Return to
work[,] no restrictions.” Complainant provided no indication why the
certificate had not been provided before the previous decision was issued.
DETERMINATION
We remind Complainant that a “request for reconsideration is not
a second appeal to the Commission.” Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9,
1999), at 9-17. A reconsideration request is an opportunity to
demonstrate that the previous decision involved a clearly erroneous
interpretation of material fact or law; or (2) will have a substantial
impact on the policies, practices, or operations of the Agency.
Here, we find no evidence that Complainant has met the criteria for
reconsideration.
First, with respect to the certificate that Complainant provided, the
Commission does not accept new evidence submitted for the first time in a
request for reconsideration without some indication that the evidence was
not readily available before the appellate decision was issued. As noted
above, Complainant provided no such indication. Andrews v. Dep’t of the
Navy, EEOC Request No. 05900215 (May 3, 1990) (Commission indicated that
a request to reconsider is not a means to submit evidence that should
have been provided before the Commission's previous decision was issued).
Notwithstanding the above, we find that although the certificate indicates
that Complainant was under the care of a doctor during the period at issue
for the treatment of vertigo, there is nothing in the certificate which
would indicate that Complainant’s untimely Counselor contact should
be excused. The correct standard to apply when an employee claims that
a physical, psychiatric, or psychological condition prevented him or
her from meeting a particular deadline is that the employee must have
been so incapacitated by the condition as to render him or her unable to
comply with the deadline. See Zelmer v. U.S. Postal Serv., EEOC Request
No. 05890164 (Mar. 8, 1989); and Crear v. U.S. Postal Serv., EEOC Request
No. 05920700 (Oct. 29, 1992). Here, we find, as in the previous decision,
no persuasive evidence that would indicate that Complainant’s medical
condition was such that he was so incapacitated by his condition as to
render him unable to comply with the 45 day deadline for contacting an
EEO Counselor or at some time prior to October 31, 2010.1
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0120112262 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 (P0610)
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 (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
__12/14/11_______________
Date
1 For example, a sworn statement from Complainant’s doctor or some
other individual describing Complainant’s condition during the period
after the Agency notified him of his termination.
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0520120010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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