[Redacted], Lamar D, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 9, 2021

Appeal No. 2020004047 (E.E.O.C. Nov. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lamar D,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004047 Agency No. 4G-770-0248-19 DISMISSAL OF APPEAL On July 4, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the May 13, 2020, final agency decision (final decision) concerning his complaint of unlawful employment in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we shall DISMISS the appeal as untimely. Here, our review of the Agency’s final decision shows that the Agency properly advised Complainant that he had 30 calendar days after receipt of the final decision to file his appeal with the Commission by either: 1) filing his appeal through the EEOC Public Portal; or 2) mailing his appeal to the Commission at P.O. Box 77960, Washington, DC 20013-8960. As the final decision was received at Complainant’s residence on May 18, 2020,2 Complainant was required to file his appeal no later than June 17, 2020. Complainant ultimately filed his appeal on July 4, 2020, approximately 17 days after the appeal filing period had expired. Approximately 37 days after he filed his appeal, Complainant uploaded a letter on August 10, 2020, through the EEOC Public Portal, containing his explanation for filing his appeal late. 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 See Complaint File at 9. 2020004047 2 Complainant filed the instant appeal with a note stating that he was in the hospital when the notice was received by his wife at their home address. Complainant states that his wife was aware of the document but did not bring it to his attention. Complainant further argues in the letter that he “couldn’t act on it as there was no computer [he] could use.” We note that under our regulations, any statement or brief on behalf of a complainant in support of an appeal must be submitted to the Commission within 30 calendar days of filing the notice of appeal. See 29 C.F.R. § 1614.403(d). As Complainant’s letter failed to articulate any justification as to why he filed his brief more than 30 calendar days after filing the notice of appeal, we will not consider his explanation for filing his appeal late. See Jayson R. v. Dep’t of Def., EEOC Appeal No. 0120151821 (Dec. 13, 2017) (declining to consider complainant’s untimely brief, as complainant did not offer adequate justification for filing his brief late). Furthermore, when a complainant claims that a physical condition prevents him 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 his 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 he was in the hospital. However, Complainant does not submit any medical documentation supporting a determination that he was so incapacitated during the applicable 30-day period as to prevent him from timely filing the instant appeal. Therefore, Complainant has not presented adequate justification for extending the limitation period beyond 30 days. Because Complainant has not offered any timely justification for his untimely filing, we will not consider his appeal. 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). 2020004047 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. 2020004047 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 November 9, 2021 Date