[Redacted], Milford R, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2021001564 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milford R,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001564 Agency No. 2004-0652-2020105841 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated November 12, 2020, dismissing his 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 At the time of events giving rise to this complaint, Complainant worked as a Computer Assistant, GS-7, at the Agency’s Medical Center facility in Richmond, Virginia. On October 1, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when, from March 2020, Complainant has been denied a reasonable accommodation. The Agency dismissed the claim for untimely filing of the formal complaint. The instant appeal followed. 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. 2021001564 2 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part, that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in § 1614.106, unless the agency extends the time limits in accordance with § 1614.604(c). EEOC Regulation 29 C.F.R. § 1614.106(b) requires that a complaint be filed within fifteen days of receipt of the notice of right to file. Section 1614.604(b) states that a document shall be deemed timely if it is received 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. The record in this case shows that the Agency sent Complainant his notice of right to file a Formal complaint (Notice) on September 14, 2020, via email. The Notice informed Complainant that he had fifteen days from the date of receipt to file his Formal complaint. To be timely Complainant’s Formal complaint would have had to have been submitted by September 29, 2020. Complainant, however, did not submit his Formal complaint until October 1, 2020, via email, along with a message stating “I pray that this is sent on time.” We note in this regard that Complainant has not claimed that he did not receive or open the Notice until a later date. Complainant’s comment “I pray that this is sent on time” indicates he was aware that his Formal complaint might be deemed untimely-filed. The Agency subsequently contacted Complainant requesting additional information regarding his untimeliness. Complainant’s representative submitted the following response: On April 9, 2018, [Complainant] retained our office to assist with discrimination against [the Agency]. From April 9, 2018, to the present, we are representing [Complainant in a different complaint]. Since 2019, [he] has advised our office of additional discrimination of [sic] ADA. Our office advised [Complainant] to file an internal complaint with [the Agency]. However, [Complainant] is responsible for filing the internal complaint and formal complaint. On the second charge, [Complainant] was advised we will assist once the initial paperwork is filed, and his case is assigned to an investigator. Since [Complainant] was in so much pain, he could not reach out to our office for assistance. Our office is not in the business of leaving clients astray; however, [his] surgery affected him so much our office was unaware of him needing assistance. Complainant’s representative sent an additional response stating: This email is in response to the timeliness of the Formal Complaint regarding [Complainant]. On August 12, 2020, [he] received surgery for an umbilical hernia. [Complainant] was provided a doctor's note for August 12, 2020, to October 1, 2020. After September 8, 2020, [Complainant] was required to work light duty until October 1, 2020. On September 21, 22, and 23, 2020, [Complainant] reached out to [the Agency] regarding the pain he experienced 2021001564 3 from the surgery. [He] had no intention of filing his response past the due date of September 29, 2020. [Complainant] just had recent surgery, which prevented him from sitting and complete [sic] a certain task. Please accept [Complainant’s] recent medical incapacity, which delayed his timeliness to respond regarding his Formal Complaint. I have attached Exhibits regarding [Complainant’s] medical condition. However, I do not see any comments on [Complainant’s] VA 4939 form related to internet issues. The Agency noted, however, that Complainant could have filed his Formal complaint between September 14 and September 21, 2020 and we agree that Complainant has not shown he was so incapacitated during that period that he was unable to file his Formal complaint. We note in this regard that Complainant was cleared to work light duty at the time and we find that filing a Formal complaint is compatible with light-duty work. We have consistently held, in cases involving physical or mental health difficulties, that an extension is only warranted where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992); Weinberger v. Department of the Army, EEOC Request No. 05920040 (February 21, 1992); Hickman v. Department of the Navy, EEOC Request No. 05910707 (September 30, 1991); Johnson v. Department of Health and Human Services, EEOC Request No. 05900873 (October 5, 1990). Because Complainant does not deny receiving the Notice on September 14, 2020, and because he has not shown he was medically incapacitated between September 14 and September 21, 2020, we find that Complainant’s formal complaint was untimely-filed. CONCLUSION The Agency’s Dismissal is AFFIRMED. 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. 2021001564 4 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). 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. 2021001564 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation