01A31000_r
03-26-2003
Carl Brzozowski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carl Brzozowski v. United States Postal Service
01A31000
March 26, 2003
.
Carl Brzozowski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31000
Agency No. 4-J-600-0148-02
DISMISSAL OF APPEAL
By Notice of Appeal postmarked November 6, 2002, complainant appealed
to this Commission from the agency's September 23, 2002 dismissal of his
employment discrimination complaint. The record includes a certified mail
return receipt card, revealing that complainant received the agency's
dismissal on September 26, 2002. The agency's final decision properly
advised complainant of the thirty (30) calendar day time limit for filing
his appeal. Therefore, in order to be considered timely, complainant
should have filed his appeal no later than October 28, 2002.<1>
Complainant contends that he was hospitalized, and unable to file his
appeal earlier during the recovery process. He also contends that
attempts to obtain legal counsel delayed his appeal. To support his
claim, complainant submits a note from his physician, indicating that
complainant was �hospitalized due to work stress� on July 16, 2002.
However, complainant also submitted a July 18, 2002 prognosis from his
doctor, indicating that complainant can return to work, so long as he
is not returned to the same office.
In cases involving physical or mental health difficulties, 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). Complainant has not shown that, subsequent to
July 18, 2002, he was so incapacitated. Therefore, complainant has
not offered adequate justification for an extension of the applicable
time limit for filing his appeal, and his untimely appeal is DISMISSED.
See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 26, 2003
__________________
Date
1Since the last day of the time period fell
on Saturday, October 26, 2002, complainant was granted an extension
until the next business day, Monday, October 28. 29 C.F.R. � 1614.604(d).