[Redacted], Mike G,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 5, 2019

Appeal No. 2020000385 (E.E.O.C. Dec. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mike G,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000385 Agency No. 2003-0756-2019103085 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 17, 2019, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Supervisory Budget Analyst in El Paso, Texas. On July 9, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior protected EEO activity. On August 17, 2019, the Agency issued the instant final decision. The Agency dismissed the formal complaint on the grounds that it was untimely filed. The Agency found that the Notice of Right to File (Notice) was received by Complainant on May 31, 2019. However, Complainant did not file the formal complaint until July 9, 2019, outside of the applicable time limit. The Agency stated that “[Complainant] acknowledged receiving the [Notice] on May 31, 2019, and indicated that [he] intended to fill out the paperwork and send it in that week, but [he] never opened the envelope. 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. 2020000385 2 [Complainant] further stated that [he] was informed on June 1, 2019, that mediation had been scheduled for June 6, 2019 and because he agreed to mediation, [he was] under the impression that [he was] still in the informal stage…” The Agency found that Complainant received the Notice of Rights and Responsibilities on May 9, 2019, which set forth the 15-day time limit to file a formal complaint from the receipt of the Notice. The instant appeal followed. On appeal, Complainant assert that he was incapacitated due to health-related conditions from January 29, 2019-April 14, 2019. In response, the Agency requests that we affirm its final decision dismissing the 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 Complainant’s formal complaint on the grounds it was untimely filed. The record reflects that the Notice was delivered to Complainant’s address of record on May 31, 2019.2 However, Complainant did not file his formal complaint until July 9, 2019, outside of the applicable time period. In an attachment to his formal complaint, Complainant sets forth his explanation for the delay in filing his formal complaint. Specifically, Complainant states: Om [May 28, 2019, I spoke with my EEO Counselor regarding my intent to move forward with a formal complaint…He responded to my request…that he would send out the [Notice]. On [May 31, 2019], I received the documentation…at my home…and intended to fill out the [Notice] that week and send it in, but never opened the envelope. On [June 1, 2019], my local EEO Counselor informed me that she was able to secure a mediation date…for [June 6, 2019]. I agreed and was under the impression that I was still in the informal stage…At this point, I still never opened the envelope [with the Notice] and was unaware of the 15-day time limit. Complainant asserts that he finally opened the Notice on July 6, 2019, after declining a settlement offer. 2 The Notice contained the 15-day time limit to file a formal complaint. 2020000385 3 We are not persuaded by Complainant’s assertion that the formal complaint should be deemed timely because he thought that he was still in the informal process and that he did not open the envelope containing the Notice upon receipt.3 The record contains a memorandum dated May 9, 2019 from the EEO Counselor to Complainant. Therein, the EEO Counselor forwarded to Complainant the Notice of Rights and Responsibilities. The Notice of Rights and Responsibilities sets forth the 15-day time limit to file a formal complaint from receipt of the Notice. The record also contains a declaration under penalty of perjury from the EEO Manager at Complainant’s facility. The EEO Manager stated that EEO posters are on display throughout the facility where Complainant works, and that these posters address the applicable 15-day time limit. Based on the foregoing, we find that Complainant had knowledge of the time limit. The record is devoid of evidence that Agency EEO staff misled Complainant regarding the time limit. On appeal, Complainant asserts that he was incapacitated for a period of time. We have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render him physically unable to make a timely filing. See Zelmer v. United States Postal Service, EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). Complainant has not provided evidence, such as medical documentation, indicating that he was so incapacitated during the relevant time period that he was unable to file a formal complaint. Based on the foregoing, we find that Complainant has not presented sufficient justification to extend the applicable time limit. We note that to the extent Complainant believes he is still being subjected to discrimination or a denial of a reasonable accommodation, subsequent to the filing of the instant complaint, he should contact an EEO Counselor, if he wishes to pursue these matters through the EEO process. We AFFIRM the Agency’s final decision dismissing the formal complaint for the reason discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 3 We note that Commission guidance encourage resolution through settlement at all stages of the administrative process. See Equal Employment Opportunity Directive for 29 C.F.R. Part 1614 (EEO-MD-110) (rev. Aug. 5, 2015) Ch. 12, I. 2020000385 4 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2020000385 5 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 December 5, 2019 Date