0120121474
11-09-2012
Lola McGee, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Region), Agency.
Lola McGee,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Region),
Agency.
Appeal No. 0120121474
Agency Nos. 4E-890-0120-08
4E-890-0043-09
DISMISSAL OF APPEAL
By Notice of Appeal postmarked September 6, 2011, Complainant filed an appeal with this Commission from the August 11, 2009 and October 21, 2009 final Agency decisions (FADs) concerning her EEO complaints 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In response to Complainant's appeal, the Agency argued that it was untimely filed. Specifically, the Agency stated that on August 11, 2009, it issued a FAD for Agency Case No. 4E-890-0120-08 and issued a FAD for Agency Case No. 4E-890-0043-09 on October 21, 2009. The record reflects that the Agency sent the two subject FADs to Complainant's address of record. A review of the FADs reveals that the Agency properly advised Complainant that she had thirty (30) calendar days after receipt of its final decisions to timely file an appeal with the Commission. However, Complainant did not file her appeal until September 2011, nearly two years late.
The record also contains a letter dated August 25, 2010, from Complainant to the Agency. Therein, Complainant stated in regard to Agency Case Nos. 4E-890-0120-08 and 4E-890-0043-09, "the purpose of this letter is to notify all agencies, offices, and departments involved, in the cases stated above along with certain individuals of my intent to file a civil action against the United States Postal Service for the Discrimination, illnesses, and injuries I sustained while being on the job performing my duties as assigned."
On appeal, Complainant does not dispute that her appeal was untimely filed. However, she provides the following justification to excuse the delay:
I am asking for the [Commission] to grant me an appeal to the above case numbers as I have been severely ill and in me[n]tal turmoil. I had two major operations one to my heart and the other to my female organs.
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, the 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). In the instant matter, Complainant's above referenced statement, without more detail, is too general in nature to support a finding of incapacitation such as to justify her appeal filed almost two years late.
Accordingly, Complainant's appeal is hereby DISMISSED. See 29 C.F.R. � 1614.403(c).
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
November 9, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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