05a10111
02-07-2001
Carlos A. Hernandez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carlos A. Hernandez v. United States Postal Service
05A10111
February 7, 2001
.
Carlos A. Hernandez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A10111
Appeal No. 01A05564
Agency No. 4-G-770-0359-00
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Carlos
A. Hernandez v. United States Postal Service, EEOC Appeal No. 01A05564
(October 27, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, 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).
After a review of the complainant's request for reconsideration, 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. In the request for
reconsideration, complainant asserts that the delay in filing the formal
complaint was attributable to headaches, dizziness, and difficulties in
focusing on his work and personal duties in May 2000, that culminated
in a July 2000 diagnosis by his physician that he had undergone a
�hypertensive crisis,� and provides a statement from his physician in
support of this assertion. When a complainant claims that a physical
condition prevents him 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 him physically
unable to make a timely filing. See Zelmer v. USPS, EEOC Request
No. 05890164 (March 8, 1989). The same is true regarding claims of
incapacity related to psychiatric or psychological conditions. See Crear
v. USPS, EEOC Request No. 05920700 (October 29, 1992). Nothing in the
statements prepared by complainant's physician supports the contention
that he was so incapacitated during the applicable fifteen-day period
as to prevent him from timely filing his complaint. The decision
in EEOC Appeal No. 01A05564 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 7, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.