APPELLANT,
v.
WILLIAM J. HENDERSON, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Request No. 05980475
Appeal No. 01974337
Agency No. 1-F-906-0011-97

August 06, 1998

DENIAL OF REQUEST FOR RECONSIDERATION

On March 12, 1998, Appellant (appellant) timely initiated a request to the Equal Employment Opportunity Commission (EEOC) to reconsider the decision in Appellant v. United States Postal Service, EEOC Appeal No. 01974337 (February 13, 1998). EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. § 1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy, 29 C.F.R. §1614.407(c)(2); and the previous decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3). Appellant's request is denied.

The issue in this case is whether appellant timely filed her formal complaint of discrimination. The record shows that she received her notice of right to file a formal complaint on December 24, 1996. Appellant's formal complaint was received by the agency in an envelope with a postal service meter date of January 16, 1997. Thereafter the agency dismissed the complaint for failure to timely file a formal complaint, and the previous decision affirmed.

The previous decision noted appellant's arguments that she was ill during the time period that her complaint was due. In her request, appellant submits documents showing that during the time period she was absent from work and that she had bronchitis and a viral infection. However, the Commission is not convinced that appellant was so ill that she was incapacitated and could not send in her formal complaint in a timely fashion. In Weinberger v. Dept. of the Army, EEOC Request No. 05920040 (February 21, 1992), the Commission held that "when an appellant claims that a physical condition prevented him/her from meeting a particular deadline, the appellant must be so incapacitated by the condition as to render him/her unable to make a timely filing."One of appellant's documents show she could return to work on January 3, 1997, and the other shows she could return on January 10, 1997. Another document covers the time period after she filed her complaint- January 18-28, 1997. Appellant also enclosed copies of her leave requests which were submitted on December 28, 1996 and January 10, 1997, and signed by appellant on January 14, 1997. An examination of the record indicates that appellant's formal complaint was signed by her on January 7, 1997, even though it was mailed one week later. Thus, the Commission finds that appellant was not so incapacitated that she could not timely file her appeal and thus, has failed to submit adequate justification for extending the time limits. 29 C.F.R. §1614.604(c).

After a review of appellant's request for reconsideration, the previous decision, and the entire record, the Com-mission finds appellant's request does not meet the criteria of 29 C.F.R. §1614.407(c), and it is the decision of the Commission to deny appellant's request. The decision of the Commission in Appeal No. 01974337 remains the Commission's final decision. There is no further right of administrative appeal from the decision of the Commission on this request for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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:

Frances M. Hart
Executive Officer
Executive Secretariat