0520120371
08-14-2012
Morris J. Angell, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Morris J. Angell,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Request No. 0520120371
Appeal No. 0120120062
Agency No. 11R9PBSMJA18
DENIAL
Complainant timely requested reconsideration of the decision in Morris J. Angell v. General Services Administration, EEOC Appeal No. 0120120062 (March 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).
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 filed a formal complaint indicating that, on May 3, 2011, he received a level 2 (minimally successful) performance rating for the period of October 1, 2009 - April 6, 2010. Because Complainant did not contact an EEO counselor until June 21, 2011, the Agency dismissed his complaint on the grounds of untimely counselor contact. The previous decision, noting Complainant's statement that he may have miscalculated the deadline date, affirmed the Agency's dismissal.
In his request for reconsideration, Complainant argues, in pertinent part, that: he was confused about the date that he received his rating and although he wrote "May 3, 2011," on the form, he now believes the date to have been "May 9, 2011," the date he wrote on his calendar as being the date he met with his supervisor. As an explanation for his confusion, Complainant maintains that he was "stunned, shocked and very emotionally disturbed" by the rating. He also attributes his confusion to his medical condition and use of prescribed drugs and a "burdensome workload and understaffing in his workgroup.
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. 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.
Furthermore, to the extent that Complainant maintains that his medical condition and use of prescribed medication contributed to his untimely counselor contact, not just his confusion over the dates, we note that the Commission has held that when an employee claims that a physical, psychiatric, or psychological condition prevented him or her from meeting a particular deadline, in order to justify the untimeliness, the employee 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 he was so incapacitated by his condition as to render him unable to comply with the deadline.
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. 0120120062 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
___8/14/12_______________
Date
2
0520120371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120371