[Redacted], Herta K., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jul 26, 2021

Appeal No. 2021002694 (E.E.O.C. Jul. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herta K.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002694 Agency No. ABRAGG21DEC00176 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 19, 2021, dismissing her 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Pediatric Cardiac Sonographer, GS-12, at the Agency’s Womack Army Medical Center in Fort Bragg, North Carolina. On March 5, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Asian Indian), national origin (Indian), sex (female), religion (Hindu), color (Brown), age (63), and reprisal for prior protected EEO activity when on November 17, 2020, Complainant was informed that her incentive and retention bonus for 2021 was to be terminated, and, in fact, Complainant’s incentive and retention bonus was terminated effective November 19, 2020. 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. 2021002694 2 The Agency dismissed this claim for failure to file the formal complaint within 15 days of Complainant’s receipt of her Notice of Right to File a Formal Complaint (the Notice). The Agency reasoned Complainant received and signed for the Notice on February 16, 2021. The Notice clearly informed the Complainant of the 15-day filing deadline. The 15 days began to run on February 17, 2021 and ended on March 3, 2021. Complainant filed her formal complaint on March 5, 2021. It was therefore deemed untimely and dismissed. Complainant filed the instant appeal. On appeal, Complainant acknowledges her formal complaint was filed two days after the deadline for timely filing, but she contends she has been working as a full time health care worker and February and March 2021 were very busy for her at work, she had so far lost seven members of her family in India to COVID-19, the Pediatric Cardiology and the Echo Lab had to move from the Womack main hospital to a remote clinic inside the base and she had to pack and coordinate, and she is the only pediatric and fetal pediatric sonographer for the whole base. Therefore, she believes an extension is warranted. On appeal, the Agency contends Complainant’s appeal should be dismissed because she failed to submit her formal complaint within 15 days of receiving her Notice of Right to File and she does not provide adequate justification for why the filing deadline should be overlooked. 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 notice of the right to do so. Here, Complainant does not dispute that she did not file her complaint until two days after the deadline for timely filing. Complainant acknowledged that her formal complaint was filed untimely but asks that her delay be excused. She states she was the only fetal and pediatric sonographer at base, work was very busy, she lost several family members due to COVID-19, and her clinic moved locations. She indicates that she could only take care of her EEO complaint after hours and off duty. However, we do not find that Complainant has provided adequate reasons for extending the complaint filing deadline. With regard to being extremely busy at work, she has not explained why she could not have filed her complaint during her non-duty hours over the 15-day period. Complainant also appears to be alleging that she was unable to file during this period due to stress caused by her work and losing family members in India due to COVID-19. When a complainant claims that a physical or mental condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her unable to make a timely filing. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). 2021002694 3 While we are sympathetic to Complainant's plight during this period, there is nothing in the record reflecting that Complainant was so incapacitated due to stress during the applicable fifteen-day period as to prevent her from timely filing her formal complaint. As such, Complainant has not presented adequate justification for extending the limitation period beyond fifteen days. Therefore, the Agency correctly dismissed Complainant’s complaint for untimely filing. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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. 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). 2021002694 4 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 July 26, 2021 Date