01992132_r
05-18-1999
Joseph G. Cutrufello, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joseph G. Cutrufello, )
Appellant, )
)
v. ) Appeal No. 01982132
) Agency No. 4A-070-0060-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DISMISSAL OF APPEAL
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination.
The appeal was postmarked January 19, 1999.
By regulation, appeals to the Commission must be filed within thirty
calendar days after an appellant receives notice of the final agency
decision. 29 C.F.R. �1614.402(a). If the complainant is represented by
an attorney of record, the thirty-day time period shall be calculated
from the date of receipt of the required document by the attorney.
In all other instances, the time within which to appeal shall be
calculated from the receipt of the required document by the complainant.
29 C.F.R. �1614.402(b).
In this case, the record reflects that the final decision was received
on May 1, 1998. The appeal was filed on January 19, 1999.
The Commission's regulations governing the computation of time limits
allow for waiver and/or equitable tolling. 29 C.F.R. �1614.604(c).
Appellant argues on appeal that his delay in filing an appeal was
attributable to a suicide attempt on May 21, 1998, and to deep depression
and other psychiatric conditions, as well as neurological conditions of
organic personality disorder and post concussional syndrome. Where a
physical condition prevents an appellant from meeting a particular
deadline, the appellant must be so incapacitated by the condition as to
render him unable to make a timely filing. See Weinberger v. Department
of the Army, EEOC Request No. 05920040 (February 21, 1992). 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).
The record reveals that appellant had an emergency room visit on May
22, 1998, following a suicide attempt on May 21, 1998; and that he
was hospitalized on May 27, 1998, and was discharged on June 2, 1998.
Thus the limitation period for filing an appeal should have been tolled
from May 27, 1998 to June 2, 1998. See Ostrenga v. Department of
Veterans Affairs, EEOC Request No. 05890060 (May 22, 1989). (stating
that where an appellant has failed to file a timely appeal due to his
hospitalization, the time for filing an appeal must be tolled until
the appellant is released from the hospital). While appellant has
submitted on appeal psychiatric documentation regarding his condition
subsequent to his June 2, 1998 hospital discharge, he has not presented
any evidence indicating that he was so incapacitated subsequent to June 2,
1998, that he could not have then filed his appeal in a timely manner.
We note further that appellant's appeal was filed more than seven months
after his hospital release on June 2, 1998. 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
May 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations