05a01185
03-30-2001
Anthony E. Lewis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Anthony E. Lewis v. Department of Veterans Affairs
05A01185
03-30-01
.
Anthony E. Lewis,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A01185
Appeal No. 01A03044
Agency No. 2003-661
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Anthony
E. Lewis v. Department of Veterans Affairs, EEOC Appeal No. 01A03044
(June 27, 2000). By regulation, requests for reconsideration must
be filed within thirty (30) calendar days after the party requesting
reconsideration receives our previous decision. 29 C.F.R. � 1614.405(b).
Requests for reconsideration are deemed filed on the date received by
the Commission, unless postmarked earlier.
The record reflects that our previous decision was mailed to complainant
on June 27, 2000. Allowing for a five (5) day presumption of receipt,
complainant should have received the decision on July 2, 2000;
consequently, his request for reconsideration (RTR) should have been
filed no later than August 2, 2000. Complainant's RTR, however, was
postmarked August 19, 2000.
A review of the previous decision revealed that complainant was informed
that the failure to file a reconsideration request within the allotted
time period would result in its dismissal. Moreover, we find that
complainant has not submitted an adequate justification for extending
or waiving the 30-day time limitation period. We note in this regard
that complainant seemed to insinuate that he was unable to file his RTR
in a timely manner because he was under a physician's care and on
emergency medical leave for a week. We note, however that complainant
did not indicate what the exact nature of his medical impairment was
or the dates that he was impaired. Furthermore, he did not submit any
documentation from his physician.
The Commission has consistently held, in cases involving physical or
mental health difficulties, that an extension is warranted only where
an individual is so incapacitated by his condition that he is unable
to meet the regulatory time limits. 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);
and Zelmer v. United States Postal Service, EEOC Request No. 05890164
(March 8, 1989). Because the evidence does not support a finding
that complainant was so incapacitated as to have been unable to pursue
this matter in a timely manner, we find no basis for tolling the time
limit for filing his RTR. Accordingly, complainant's RTR is deemed
untimely and is DENIED. The decision in EEOC Appeal No. 01A03044
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
_____03-30-01_________________________
Date