[Redacted], Karan F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2020002438 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karan F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020002438 Agency No. 4B-100-0114-18 DISMISSAL OF APPEAL On February 1, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the December 4, 2019, final agency decision (FAD) concerning her EEO complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. We note that the Agency had previously dismissed the claim on appeal here for untimely filing, but that decision was ultimately overturned by the Commission in Karan F. v. U.S. Postal Serv., EEOC Appeal No. 2019002420 (May 7, 2019). Following an investigation into the remanded claim, the Agency issued the FAD pursuant to 29 C.F.R. § 1614.110(b). According to the tracking numbers contained in the FAD, copies of the FAD were delivered to both Complainant and her union representative on December 8, 2019, via U.S. Mail, at their addresses of record. A review of the FAD reveals that the Agency properly advised Complainant and her representative that they had 30 calendar days after receipt of its final decision to file an appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file her appeal no later than Tuesday, January 7, 2020. Complainant, however, postmarked her appeal on February 1, 2020, nearly one month after the deadline had elapsed. 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. 2020002438 2 On appeal, Complainant contends that she never received the FAD. She asserts that the only mailing that she received was a letter from the Commission dated December 16, 2019, which informed her that the Commission had ceased compliance monitoring activity because the Agency had already processed the remanded claim and issued the FAD. Complainant appeals the merits of the FAD on the grounds that she was not in “good standing mentally to pursue this case as [she] would have in good health.” In support of her contention, she offers a letter from her treating clinical social worker who noted that Complainant was receiving twice a month psychotherapy sessions and medication for major depression and moderate anxiety. Complainant also offers copies of her earnings statements from 2019, showing that she was regularly absent from work. She states that she will provide additional evidence in the future to support her case. Having reviewed the record, we find Complainant’s appeal to be untimely. In this regard, while we acknowledge Complainant’s contention that she did not receive the FAD, our review of the record clearly shows that copies of the FAD were delivered to both Complainant and her union representative on December 8, 2019, at their addresses of record. See Complaint File at 15-16. Therefore, Complainant was required to file an appeal no later than Tuesday, January 7, 2020; however, she failed to do so in a timely manner.2 In finding Complainant’s appeal to be untimely, we acknowledge Complainant’s contention that she was not in “good standing mentally” to pursue the case; however, we find that contention to be unpersuasive. We have consistently held that, when a complainant claims that a physical or mental condition prevented him/her from meeting a particular filing deadline, in order to justify the untimely filing, the complainant must be so incapacitated by his/her condition that he/she was unable to meet the regulatory time limits. See Seastrong v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A22472 (April 7, 2003); Harvey G. v. U.S. Postal Serv., EEOC Appeal No. 0120170163 (Feb. 23, 2017). Here, while we are mindful that Complainant’s appeal file includes a letter from a clinical social worker noting Complainant’s twice a month psychotherapy sessions and medication for depression and anxiety, we find nothing in the record to establish that Complainant was so incapacitated as to prevent her from filing a timely appeal. In reaching this conclusion, we recognize that, in EEOC Appeal No. 2019002420, we excused Complainant’s brief delay in filing her formal complaint; however, in that case, Complainant provided a contemporaneous physician’s statement dated December 10, 2018, that persuasively established that she was mentally unable to file her formal complaint during the relevant period. 2 Even if we were to assume arguendo that neither Complainant nor her union representative received the FAD, we note that the Commission notified Complainant in its letter dated December 16, 2019, that a FAD had already been issued. Despite being put on knowledge that the Agency had already issued the FAD, Complainant failed to take any action until February 1, 2020, when she belatedly filed her appeal. 2020002438 3 The physician, who asked us to "excuse [Complainant's] failure to hand in EEO paperwork on time," expressly stated that Complainant's depression "often interferes with normal daily functions, such as calling into work and tardiness." Because the medical evidence that Complainant now presents on appeal fails to persuasively show a continuation of that incapacity, we decline to excuse her untimely filing this time. CONCLUSION Accordingly, Complainant's February 1, 2020 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). 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). 2020002438 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 June 2, 2021 Date