01993264waller
03-20-2001
Charles V. Waller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Region), Agency.
Charles V. Waller v. U.S. Postal Service
01993264
March 20, 2001
.
Charles V. Waller,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Mid-Atlantic Region),
Agency.
Appeal No. 01993264
Agency No. 1D-401-0041-98
DISMISSAL OF APPEAL
Complainant filed an appeal March 18, 1999, with this Commission
from the January 14, 1999, final agency decision (FAD), dismissing
his EEO complaint of unlawful employment discrimination. The agency
filed a reply, requesting that the Commission dismiss the appeal for
untimeliness.
The agency indicates that the FAD was received at complainant's address of
record on January 20, 1999. A review of the FAD reveals that the agency
properly advised complainant that he had thirty (30) calendar days after
receipt of its final decision to file an appeal with the Commission.
Therefore, in order to be considered timely, complainant had to file
his appeal no later than February 19, 1999.
Complainant acknowledges that he missed the 30-day appeal deadline.
However, he indicates that this was due to a severe depressive episode
which culminated at the end of February. Complainant explains that he
got confused and depressed during and after the holidays, because he had
not heard anything from any of the agencies involved in his appeals,
concerning his claims arising from his employment with the agency.
This confusion led him to think he had a 90-day appeal deadline. When he
felt better, he reread the agency's decision and saw that he only had
30 days to appeal.
While we are sympathetic to complainant's hardship, complainant did not
show sufficient incapacity to justify waiving the 30-day appeal deadline.
The Commission is not convinced that complainant was so ill that he was
incapacitated and could not send in his appeal in a timely fashion.
In Weinberger v. Department of the Army, EEOC Request No. 05920040
(February 21, 1992), the Commission held that �when an appellant claims
that a physical condition prevented him/her from meeting a particular
deadline, the appellant must be so incapacitated by the condition as
to render him/her unable to make a timely filing.� While complainant
indicates that he had a severe depressive episode, there is no indication
that he lacked the capacity to pursue his appeal. See Davis v. United
States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear
v. United States Postal Service, EEOC Request No. 05920700 (October 29,
1992).
The Commission therefore concludes that complainant has not presented
sufficient circumstances to warrant an extension of the prescribed time
for filing his appeal. Accordingly, complainant's appeal is hereby
DISMISSED. See 29 C.F.R. �� 1614.402 and 1614.604.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (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
March 20, 2001
Date