01A33642_r
09-03-2003
Robert N. Horey, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Robert N. Horey v. Department of Transportation
01A33642
September 3, 2003
.
Robert N. Horey,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A33642
Agency No. 4-03-4083
DISMISSAL OF APPEAL
By notice of appeal dated May 30, 2003, complainant appealed to this
Commission from the agency's March 28, 2003 dismissal of his employment
discrimination complaint. A copy of the certified mail return receipt
card reveals that complainant received the final decision at his address
of record on March 31, 2003. In its decision, the agency properly
advised complainant that he had thirty (30) calendar days after receipt
of its final decision to file his appeal with the Commission. Therefore,
in order to be considered timely, complainant had to file his appeal no
later than Wednesday, April 30, 2003.
On appeal, complainant argues that his untimeliness should be excused
because from February 18 to June 20, he was recovering from a hemorrhaged
eye, macular hole, and retina detachment. We have consistently held,
in cases involving physical or mental health difficulties, that 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). In the present case, complainant
provides no explanation, for why he was capable of submitting his appeal
during his recovery on May 30, 2003, but not by April 30, 2003. Further,
complainant has provided no supporting evidence concerning the extent
of his incapacity. Accordingly, complainant's June 4, 2002 appeal is
hereby 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
September 3, 2003
__________________
Date