01982106_r
01-09-1999
Bernal A. Otto, )
Appellant, )
) Appeal No. 01982106
v. ) Agency No. 4-I-570-0037-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On January 12, 1998, appellant filed an appeal with this Commission
from a July 31, 1997 final agency decision dismissing his complaint for
failure to file the complaint in a timely manner. The agency failed
to provide a certified mail return receipt or any other material
capable of establishing the date when appellant received the final
agency decision. Accordingly, the Commission presumes that appellant's
appeal was filed within 30 days of appellant's receipt of the agency's
final decision. Accordingly, the appeal is accepted as timely (see,
29 C.F.R. �1614.402(a)), in accordance with the provisions of EEOC Order
No. 960, as amended.
In dismissing appellant's June 23, 1997 complaint, the agency noted
that although appellant received his Notice of Right to File on May 17,
1997, appellant did not file his complaint until June 25, 1997, which
was beyond the requisite 15-day time period.
EEOC Regulation 29 C.F.R. �1614.106(b) provides that the complaint
must be filed within 15 days of the notice required by �1614.105(d).
EEOC Regulation 29 C.F.R. �1614.105(d) provides that a notice
of final interview shall inform the complainant of the right to
file a formal complaint within 15 days of receipt of the notice.
Under certain circumstances, the time limit may be extended. See 29
C.F.R. �1614.604(c). EEOC Regulation 29 C.F.R. �1614.604(b) provides
that a document shall be deemed timely if it is delivered in person 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.
The record reveals that appellant received the Notice of Right to File
on May 17, 1997. The Notice informed appellant that he had 15 days from
receipt of the Notice within which to file his complaint. The envelope
containing the complaint is postmarked June 25, 1997. Moreover,
appellant's complaint itself is dated June 23, 1997. Therefore,
appellant's complaint was untimely.
On appeal, appellant submitted a medical note, dated January 13, 1998,
wherein the physician, a family practitioner, states that appellant's
emotional state has been such that he was unable to concentrate and
that was the reason appellant was unable to complete certain forms in
a timely fashion. The note reveals that appellant had a history of
�some� chronic anxiety that was exacerbated over the past two years.
The note also reveals that appellant was off work for several months
because of an inability to cope with the situation at work and that he
was treated for anxiety and depression.
Upon review, we find that appellant's justification for the untimely
filing is not sufficient to extend the time limit. The Commission has
held that a complainant's failure to meet a filing deadline will be
excused only if the complainant establishes that he was so physically
or emotionally incapacitated that he was unable to adhere to time
limitations. See Zelmer v. U.S. Postal Service, EEOC Request No. 05890164
(March 8, 1989). The Commission has also ruled that evidence that an
employee is under a physician's care is not dispositive of an employee's
inability to take timely action. See Johnson v. Department of Health
and Human Services, EEOC Request No. 05900873 (October 5, 1990).
Consistent with our discussion, the final agency decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
Jan. 9, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations