0520130148
05-31-2013
Lola McGee, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Lola McGee,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520130148
Appeal No. 0120121474
Agency No. 4E-890-0120-08, 4E-890-0043-09
DENIAL
Complainant timely requested reconsideration of the decision in Lola McGee v. U.S. Postal Service, EEOC Appeal No. 0120121474 (November 9, 2012). 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).
Our previous decision dismissed Complainant's September 6, 2011, appeal as untimely filed. The decision noted that the Agency issued a final agency decision (FAD) for Agency Case No. 4E-890-1020-08 on August 11, 2009, and issued a FAD for Agency Case No. 4E-890-0043-09 on October 21, 2009. The decision also noted that both final agency decisions properly informed Complainant that she had 30 days after receipt of the decisions to file an appeal with this Commission. Complainant argued on appeal that the Commission should excuse her delay in filing the appeal because she had been "severely ill and in me[n]tal turmoil" and had had two major operations. The Commission concluded that Complainant's statement, "without more detail," was too general to support a finding of incapacitation such as to justify the filing of her appeal almost two years late.
In her request for reconsideration, Complainant states that she was diagnosed with mental illnesses in 2005 and with a mental disability in 2008. She further states that she was forced into a medical disability retirement in 2009 because of mental and physical disabilities and was awarded Social Security in 2011. According to Complaint, her mental state is so debilitating that, on most days, she gets out of bed only to eat and use the restroom. She asserts, "I really tried to keep up with my appeals but I just couldn't." Complainant encloses a November 20, 2012, letter to "Whom It May Concern" in which her treating psychiatrist provides a diagnosis and states that Complainant has been his patient since May 5, 2010. With respect to Complainant's condition, the psychiatrist states, "This caused [Complainant] not to appeal on a timely basis as Depression can cause isolation, sadness and not want[ing] to even get out of bed due to the condition."
In response, the Agency argues that Complainant's request fails to meet the criteria for reconsideration.
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; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
We note that, on appeal, Complainant submitted a copy of a November 11, 2009, letter that she sent to the Agency's National EEO Investigative Services. In the letter, she stated that she had received the FAD on August 18, 2009, that her health had declined, that she had been approved for medical disability retirement, that she had retained counsel, and that she was seeking attorneys' fees. The file on appeal also contained copies of a September 12, 2009, letter in which Complainant asked the Agency to issue a FAD for Agency Case No. 4E-890-0043-09 and an October 5, 2010, letter in which Complainant informed the Agency of her intent to file a civil action against the Agency.
The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension of time is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Complainant's psychiatrist states that Complainant's condition caused her not to file timely appeals, but her September 2009, November 2009, and October 2010 letters demonstrate that Complainant was capable of addressing her discrimination claims prior to her September 6, 2011, appeal to this Commission. Although we are sympathetic to Complainant's hardship, we find that she has not shown sufficient incapacity to justify a nearly two-year extension of the prescribed time period for filing an appeal. Complainant has failed to demonstrate that the previous decision erroneously dismissed her appeal as untimely filed.
After reviewing 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. 0120121474 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
May 31, 2013
Date
2
0520130148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130148