0520080071
11-16-2007
Ann Segura Minardi, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Ann Segura Minardi,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520080071
Appeal No. 0120054829
Agency No. 040406
DENIAL
Complainant requested reconsideration of the decision in Ann S. Minardi
v. Department of Homeland Security, EEOC Appeal No. 0120054829 (July
10, 2007). 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).
By regulation, requests must be filed within thirty (30) calendar days
after the party receives the previous decision. 29 C.F.R. � 1614.405(b).
A document is timely if it is received or postmarked before the expiration
of the applicable filing period or, in the absence of a legible postmark,
if it is received by mail within five days of the expiration of the
applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a
Certificate of Mailing indicating that, for purposes of timeliness,
the Commission will presume that the decision was received within five
(5) calendar days of the date on which it was mailed, July 10, 2007.
Complainant is presumed to have received the previous decision no later
than July 15, 2007. Thirty days from that date is August 14, 2007.
Complainant mailed the request on October 22, 2007, which was beyond
the 30-day limit required by regulation. As justification for the late
request submission, complainant states that she was unable to file her
request for reconsideration in a timely manner since:
1) On July 7, 2007, her mother was diagnosed with cancer;
2) On August 10, 2007, her mother underwent surgery and was determined
to have Stage 11B cancer;
3) Complainant was and continues to assist her mother in her recovery
and radiation treatments;
4) On July 13, 2007, her husband of 24 years asked for a separation and
divorce;
5) From August 2-27, 2007, she was forced to attend four mediation
sessions to plan for the separation and divorce;
6) In July 2007 and August 2007, she suffered fractured bones in both
feet that severely limited her mobility and caused extreme pain;
7) In a letter dated August 3, 2007, the agency informed complainant
that she had fifteen calendar days to submit a statement about her
compensatory damages; and
8) On August 8, 2007, the agency refused to grant her request for 24
hours of official time to deal exclusively with the EEO matters.
The Commission has consistently held, in cases involving physical or
mental health difficulties, that an extension 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. United States Postal Service,
EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal
Service, EEOC Request No. 05920700 (October 29, 1992). We find in the
instant case that, although we are sympathetic to the difficulties endured
by complainant during the time period which she was required to timely
file her request for reconsideration, complainant failed to demonstrate
that she was so incapacitated by the various incidents and concerns
such that the time limits should be waived in this case. Likewise, we
note that the last incident cited by complainant occurred on August 27,
2007; yet, she did not file her request until October 22, 2007, almost
two months later. Therefore, we decline to waive the regulatory time
limits for complainant's request for reconsideration and find that her
request is untimely.
Based on the foregoing reasons, complainant's request is denied.
The decision in EEOC Appeal No. 0120054829 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request. The agency is ordered
to comply with the order below to the extent that it has not already
done so.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall conduct a supplemental investigation to
determine whether complainant is entitled to compensatory damages incurred
as a result of the agency's discriminatory action. See Ann Minardi
v. Department of Homeland Security, EEOC Appeal No. 0120054829, at 8-9
(July 10, 2007). The agency shall allow complainant to present evidence
in support of her compensatory damages claim. See Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Complainant
shall cooperate with the agency in this regard. Thereafter, the agency
shall issue a final decision. 29 C.F.R. � 1614.110(b). The supplemental
investigation and issuance of the final decision must be completed
within ninety (90) calendar days of the date this decision becomes final.
A copy of the final decision must be submitted to the Compliance Officer,
as referenced below.
2. The agency should provide training to JE regarding his obligation
not to restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings under, the Federal equal employment
opportunity laws. The Commission does not consider training to be a
disciplinary action.
3. The agency shall consider taking disciplinary action against JE.
The agency shall report its decision. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Customs and Border Protection,
Office of Regulations and Rulings (ORR) in Washington, D.C. copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. � 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
___11-16-07_______________
Date
2
0520080071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520080071