[Redacted], Lacey T., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Executive Office of Immigration Review, Agency.

Equal Employment Opportunity Commission

Jun 16, 2021

Appeal No. 2020003065 (E.E.O.C. Jun. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lacey T.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Executive Office of Immigration Review, Agency. Appeal No. 2020003065 Hearing No. 520-2019-00516X Agency No. EOI-2018-01118 DISMISSAL OF APPEAL By Notice of Appeal postmarked March 31, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the February 13, 2020 final Agency decision (FAD) concerning her EEO 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Appeals to the Commission must be filed within thirty (30) calendar days after a complainant receives notice of the agency’s final action, pursuant to 29 C.F.R. § 1614.402(a). Our regulations further provide that a document is deemed timely if it is delivered in person or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. In her appeal, Complainant contends that her daughter signed for the FAD at Complainant’s home on February 27 or 28, 2020, while Complainant was on vacation in Florida, and she did not receive that FAD until she returned home on March 4, 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. 2020003065 2 The Commission has held that receipt of a document at a complainant's address by a member of a complainant's family or household of suitable age and discretion constitutes constructive receipt by a complainant. Baunchand v. U.S. Postal Serv., EEOC Request No. 05920389 (May 29, 1992) (citing Fischer v. U.S. Postal Serv., EEOC Request No. 05900389 (May 3, 1990)). Complainant has not argued that her daughter is not of suitable age and discretion; thus, we find Complainant had constructive receipt of the FAD on or around February 28, 2020, when her daughter signed for the FAD. The 30-day filing deadline for both February 27 and 28, 2020, fell on the weekend, so the filing deadline rolled over to the first business day: Monday, March 30, 2020. A review of the FAD reveals that the Agency properly advised Complainant that she had 30 calendar days after receipt of its final decision to file her appeal with the Commission. Complainant appeal was postmarked March 31, 2020; therefore, it was untimely filed. Complainant further explains that she has been sick with a virus since she returned from Florida. When a complainant claims that a physical or mental health condition prevents them 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 them physically unable to make a timely filing. See Pan v. U.S. Postal Serv., EEOC Appeal No. 0120131360 (June 25, 2013); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992); Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (March 8, 1989). There is nothing in the record reflecting an incapacity during the applicable period to prevent the timely filing of an appeal. Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal. CONCLUSION Accordingly, Complainant's March 31, 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 2020003065 3 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). 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. 2020003065 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 June 16, 2021 Date