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

Equal Employment Opportunity Commission

Dec 6, 2021

Appeal No. 2022000018 (E.E.O.C. Dec. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristie O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000018 Agency No. 4E-852-0005-21 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 27, 2021, dismissing a formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Postmaster in Santa Fe, New Mexico. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), sex (female), and age. On August 27, 2021, the Agency issued the instant final decision. The Agency dismissed the formal complaint on the grounds that it was untimely filed. The Agency reasoned that Complainant received the Notice of a Right to File a Formal Complaint (Notice) on January 18, 2021. The Agency found, however, that Complainant did not file her formal complaint with the Agency until July 23, 2021, outside of the applicable time period. The Agency noted that Complainant first filed her formal complaint with the 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. 2022000018 2 Commission’s Office of Federal Operations (OFO) rather than with the Agency.2 The Agency further noted that Complainant in various documents was instructed to file her formal complaint with the Agency at its NEEOISO in Tampa, Florida. The instant appeal followed. On appeal, Complainant asserts “it is agreed [she] made a procedural error” in sending her formal complaint to OFO. Complainant asserts that she thought she also sent a copy to the Agency at its Tampa, Florida address. However, Complainant states that she has experienced a “complete mental breakdown” and contracted Coronavirus. Finally, Complainant states that she has continued to experience harassment subsequent to filing her formal complaint. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after receipt of the notice of the right to file a formal complaint. 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with § 1614.604(c). The Agency properly dismissed the formal complaint on the grounds it was untimely filed. The record discloses that Complainant received the Notice on January 18, 2021. Complainant, in her formal complaint form, explicitly stated that she received the Notice on January 18, 2021. The Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, but Complainant did not file her formal complaint with the Agency until July 23, 2021, which is beyond the limitation period. The record reflects that Complainant initially submitted her formal complaint to OFO (rather than the Agency) despite being instructed by the Agency in numerous documents to file her formal complaint with the Agency at its NEEOISO address in Tampa, Florida.3 See Doonan v. U.S. Postal Serv., EEOC Appeal No. 0120071267 (March 15, 2007) (affirming agency’s dismissal that a formal complaint was untimely filed when complainant first submitted her formal complaint to the Commission rather than the agency). Complainant asserts, on appeal, that she experienced a “mental breakdown” and contracted Coronavirus. The Commission has set a high standard for a complainant to prove that a mental or physical incapacity prevented him or her from filing a timely complaint. 2 In EEOC Appeal No. 2021002105 (July 22, 2021), we remanded this matter to the Agency to accept Complainant’s complaint for investigation or to issue a final decision dismissing Complainant’s complaint on procedural grounds. 3 OFO received Complainant’s formal complaint on February 17, 2021. 2022000018 3 We have 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. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Complainant has not provided evidence, such as medical documentation, reflecting that she was so incapacitated during the relevant period that she was unable to file her formal complaint. Thus, we find that Complainant has not presented sufficient justification to extend the applicable time limit. Regarding Complainant’s assertion, on appeal, that she has continued to be subjected to harassment subsequent to filing her formal complaint, she should contact an EEO Counselor regarding these matters, if she wishes to pursue them through the EEO process. Accordingly, we AFFIRM the Agency’s final decision dismissing the formal complaint for being untimely filed. 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. 2022000018 4 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. 2022000018 5 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 December 6, 2021 Date