0120110079
02-03-2011
Angel A. Vazquez, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Angel A. Vazquez,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110079
Agency No. ARFTBUCH10MAY02135
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 24, 2010, dismissing his formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On May 12, 20100, Complainant contacted an EEO Counselor and alleged that he was discriminated against based on disability. Informal efforts to resolve the matter were unsuccessful and the Agency issued the Notice of Right to File a Formal complaint on July 9, 2010. Complainant acknowledged receipt of the Notice on July 9, 2010, and filed his formal complaint on July 27, 2010. The Agency dismissed the complaint on the grounds that it was not timely filed within the fifteen-day limitation period set forth in the EEOC regulations.
Complainant's formal complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a) (2), due to the untimely filing of the formal complaint. The record discloses that Complainant received the notice of right to file a formal complaint on July 9, 2010. Although the notice indicated that Complainant had to file a formal complaint within fifteen calendar days of its receipt, Complainant did not file his formal complaint until July 27, 2010, which is beyond the limitation period. On appeal, Complainant acknowledges that he was one day late in filing the instant formal complaint. However, Complainant asserts that he was under the treatment of a psychiatrist and that "pharmaceutical therapy . . . affected [his] attendance to his personal matters." 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). The Commission acknowledges that, on appeal, Complainant submits various documents from his physician. However, these documents do not support a finding of incapacitation such as to justify the untimely filing of the formal complaint. Therefore, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
The Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 3, 2011
__________________
Date
2
0120110079
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110079