01983440
02-11-1999
Don Lizada, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Don Lizada v. United States Postal Service
01983440
February 11, 1999
Don Lizada, )
Appellant, )
)
v. ) Appeal No. 01983440
) Agency No. 4-D-230-0152-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination.
Appellant received the final agency decision on November 19, 1997.
The appeal was forwarded from the agency's Richmond, Virginia EEO
Complaints Processing Office to the Commission, and was received by the
Commission on March 9, 1998.
By regulation, appeals to the Commission must be filed within thirty
(30) calendar days after an appellant receives notice of the final
agency decision. Appeals are deemed filed on the date received by the
Commission, unless postmarked earlier. 29 C.F.R. �1614.402(a).
In this case, the record reflects that appellant received the final
agency decision on November 19, 1997. According to the agency, appellant
hand-delivered his appeal to the agency's EEO Complaints Processing Office
in Richmond on February 19, 1998. The appeal was subsequently forwarded
to the Commission by the agency, and was received by the Commission on
March 9, 1998, which was after the date the appeal was due. The record
reveals that the final agency decision explicitly informed appellant of
the time limits on his right to appeal, as well as the agency and address
to which his appeal should be sent. The Commission's regulations
governing the computation of time limits allow for waiver and/or
equitable tolling. 29 C.F.R. �1614.604(c). It appears that appellant
attributes his delay in filing the instant appeal to his back condition.
Appellant submits medical documentation that indicates he is partially
incapacitated due to his back condition. Appellant also provides his
own descriptions of the suffering that he endures. In Zelmer v. United
States Postal Service, EEOC Request No. 05890164 (March 8, 1989), the
Commission held that a complainant's failure to meet a filing deadline
will be excused only if the complainant establishes that he or she was so
physically or emotionally incapacitated that he or she was unable to make
a timely filing. Appellant has not demonstrated, and the medical records
do not disclose, that appellant was so incapacitated that he was unable
to file his appeal in a timely manner. We find that appellant has failed
to submit adequate justification to invoke waiver or equitable tolling.
Accordingly, the appeal is untimely and is DISMISSED.
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:
February 11, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations