[Redacted], Bill A., 1 Complainant,v.Monty Wilkinson, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2021Appeal No. 2021000115 (E.E.O.C. Feb. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bill A.,1 Complainant, v. Monty Wilkinson, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021000115 Hearing No. 510-2018-00141X Agency No. BOP-2016-01155 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 1, 2020, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Corrections Officer, GL-0007-07, at the Agency’s Federal Correctional Institution (FCI) in Fairton, New Jersey. On November 21, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), religion (Islam), disability, age, and reprisal for prior protected EEO activity when, on September 1, 2016, his request for a reasonable accommodation and part of his leave without pay request were both denied. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021000115 2 He additionally alleged that, in 2016, Agency officials constantly harassed him about his duty status by requesting a fitness-for-duty examination and eventually proposing his removal because of his alleged inability to perform the duties of his position due to his work-related knee injury. The Agency accepted the complaint and conducted an investigation.2 On December 27, 2017, the Agency advised Complainant of his right to request a hearing and decision from an EEOC Administrative Judge (AJ) or request a final Agency decision. Complainant timely requested a hearing from an AJ. The AJ dismissed complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. In so doing, the AJ determined that there was no indication that Complainant was incapacitated to warrant tolling the time limit to file the formal complaint. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to file (NORF). The regulation set forth in 29 C.F.R. § 1614.604(c) states that time limits are subject to waiver, estoppel, and equitable tolling. Here, tracking records from the United States Postal Service indicate that Complainant received his NORF on October 28, 2016. Therefore, he was required to file his formal complaint by Monday, November 14, 2016. However, the record shows Complainant filed the instant complaint on November 21, 2016. Thus, his formal complaint was untimely. On appeal, Complainant does not dispute that the filing of his formal complaint was untimely. Rather, he argues that the time limit should be tolled because his mental and/or physical state following his September 28, 2016 total knee replacement surgery rendered him unable to meet the filing deadline. In so doing, he notes that, following his recovery and through the end of 2016, he was prescribed several medications, including pain relievers and glaucoma or other eye medications. He also asserts that, due to the medication, he became confused as to the time frame for submitting his complaint and did not intentionally ignore the deadline. Complainant has submitted a statement indicating, in part, that following his surgery, during the relevant time period between his receipt of his NORF on October 28, 2016 and the deadline for filing his formal complaint, Monday, November 14, 2016, that his activities included the following: (1) emailing the Union President on November 1, 2016 to discuss matters relating to the instant complaint; (2) meeting with his physician on November 10, 2016 to discuss his letter of proposed removal; and (3) speaking with the Union President on November 10, 2016 about 2 Complainant subsequently submitted several amendments, all of which were denied. 2021000115 3 matters relating to the instant complaint. When a complainant claims that a mental and/or physical condition prevents him from meeting a particular filing deadline, the Commission has held consistently that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render him psychologically and/or physically unable to make a timely filing. See Crear v. United States Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992); and Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, Complainant’s statement that he was able to engage in multiple activities, including meeting with his representative and his physician to discuss matters concerning the instant case, run counter to his argument that he was rendered so incapable by his medical condition that he was unable to file his formal complaint. Therefore, we find Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021000115 4 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 9, 2021 Date Copy with citationCopy as parenthetical citation