0120091845
08-31-2010
Joseph J. Jaworski, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Joseph J. Jaworski,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120091845
Hearing No. 530-2008-00123X
Agency No. DLAC 070491
DISMISSAL OF APPEAL
Complainant filed the instant appeal on March 24, 2009, with this Commission from the November 26, 2008, final action dismissing his EEO complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.
A review of the final action reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final action to file his appeal with the Commission. Complainant acknowledges in his statement on appeal that the instant appeal was untimely filed. As justification for his untimely filing, Complainant argues that he was hospitalized for major depression from December 13, 2008 - February 8, 2009. Complainant states that during this period he did not have any access to his files and background materials. The record reflects that the instant appeal was filed on March 24, 2009, which was more than six weeks after complainant was discharged from the hospital. Complainant notes that a symptom of major depression is difficulty or inability in making decisions and that is why he waited until March 24, 2009, to file his appeal. We find that Complainant has not presented sufficient evidence to warrant a waiver of the 30-day filing period. Complainant has not established that he was unable to file an appeal within 30 days of his hospital discharge.
We find that Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal. Accordingly, Complainant's March 24, 2009, appeal is DISMISSED. See 29 C.F.R. � 1614.403(c).
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
August 31, 2010
__________________
Date
2
0120091845
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091845