Carlos A. Hernandez, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 7, 2001
05a10111 (E.E.O.C. Feb. 7, 2001)

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.