0520110452
10-27-2011
Conchetta Brewer, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Conchetta Brewer,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Request No. 0520110452
Appeal No. 0120110752
Agency No. 10-63-02486D
DENIAL
Complainant timely requested reconsideration of the decision in Conchetta
Brewer v. Department of Commerce, EEOC Appeal No. 0120110752 (January
11, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
BACKGROUND
The facts and procedural background are set forth in the previous decision
and are incorporated herein by reference. We note the following salient
facts: Complainant received a notice of final interview on July 15,
2010. The notice indicated that Complainant had to file any subsequent
formal complaint within fifteen (15) days, i.e., Friday, July 30, 2010.
Complainant did not file her complaint until Monday, August 2, 2010.
The previous decision found that Complainant failed to provide an adequate
justification for filing her complaint in an untimely manner; therefore,
it affirmed the Agency’s dismissal of the complaint.
ARGUMENTS ON RECONSIDERATION
In her reconsideration request, Complainant, among other things, provides
that during the above period of time she had lost her home and was living
with an elderly aunt, for whom she provided care. She also stated that
she was in “excruciating pain” from arthritis in her hip for which
she had surgery in November 2010. Finally, she indicated that she was
not provided a clear understanding of the EEO process and the pertinent
time limitation periods.
We remind Complainant that a “request for reconsideration is not
a second appeal to the Commission.” Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9,
1999), at 9-17. A reconsideration request is an opportunity to
demonstrate that the previous decision involved a clearly erroneous
interpretation of material fact or law; or (2) will have a substantial
impact on the policies, practices, or operations of the Agency.
Here, we find no evidence that Complainant has met the criteria for
reconsideration. She has not established that the previous decision
clearly erred with respect to its determination that she failed to provide
an adequate justification for her untimely filing. Although we certainly
sympathize with her plight, she has provided no persuasive evidence that
she was either unable to comply with the time limitation requirements
or was unaware of said requirements.
We first note that there is no dispute that she received notice of her
right to file a formal complaint on July 15, 2010. There is also no
dispute that the notice indicated that any formal complaint had to be
filed within fifteen days of the receipt of the notice. Complainant
acknowledges that she was in communication with the EEO Counselor,
by email, on July 12, 14, 30, and August 2, regarding aspects of her
complaint. There is no evidence that she ever requested an extension,
even though the notice indicated that she only had fifteen days to file
her formal complaint.
Likewise, with respect to her statement that she was in “excruciating
pain” from the arthritis in her hip, the Commission has held that when
a complainant claims that a physical, psychiatric, or psychological
condition prevented him or her from meeting a particular deadline,
in order to justify the untimeliness, the complainant must have been
so incapacitated by the condition as to rendered him or her unable
to comply with the deadline. See Zelmer v. U.S. Postal Serv., EEOC
Request No. 05890164 (Mar. 8, 1989); and Crear v. U.S. Postal Serv.,
EEOC Request No. 05920700 (Oct. 29, 1992). Here, we find no evidence that
would indicate that Complainant’s medical condition was such that she
was so incapacitated by her condition as to render her unable to comply
with the deadline. We note in this regard that, during the period after
receiving the notice, she was in contact with the Agency’s EEO Counselor
via e-mail.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. § 1614.405(b), and it is the decision of the Commission to
DENY the request. The decision in EEOC Appeal No. 0120110752 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (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
___10/27/11_______________
Date
2
0520110452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110452