[Redacted], Breanne S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Sep 23, 2021

Appeal No. 2021003292 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanne S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003292 Agency No. 1G-781-0055-20 DISMISSAL OF APPEAL By Notice of Appeal postmarked May 3, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s March 2, 2021 final decision concerning a formal EEO complaint alleging 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. A review of the Agency’s March 2, 2021 final decision reveals that the Agency properly advised Complainant that she had thirty (30) calendar days after receipt of its final order to file her appeal with the Commission. A copy of the delivery confirmation reflects that Complainant received the final decision on March 5, 2021.2 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. 2 We note that the delivery confirmation included Complainant’s city and state of record but did not include Complainant’s full street address. However, as explained further in this decision, Complainant does not dispute that her appeal was untimely filed. 2021003292 2 Therefore, in order to be considered timely, Complainant had to file her appeal no later than April 5, 2021.3 On appeal, Complainant acknowledges that her May 3, 2021 appeal was untimely filed. Complainant states, “I am submitting this after 30 days. Reason I have been dealing with labor on surgery on both elbows.” When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, Complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, Complainant states that she had elbow surgery. However, Complainant does not submit any medical documentation supporting a determination that she was so incapacitated during the applicable thirty-day period as to prevent her from timely filing the instant appeal. Therefore, Complainant has not presented adequate justification for extending the limitation period beyond thirty days. CONCLUSION Accordingly, Complainant’s March 2, 2021 appeal is hereby DISMISSED. See 29 C.F.R. § 1614.403(c). 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). 3 We note that because thirty days after March 5, 2021, fell on Sunday, April 4, 2021, Complainant’s deadline to timely file was extended to the next business day. 2021003292 3 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. 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. 2021003292 4 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 September 23, 2021 Date