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

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2022001969 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nigel S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001969 Agency No. 4E-900-0020-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated February 14, 2022, dismissing his 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Clerk, PS-07, at the Agency’s Consumer & Industry Contact (C&IC) facility in Los Angeles, CA. On January 19, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when: 1. On August 6, 2021, his request to telework was not approved. 2. On August 30, 2021, he was issued a Letter of Warning for Failure to Report to Work as Scheduled/AWOL [Absent Without Leave]. 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. 2022001969 2 The Agency dismissed the complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2), reasoning that Complainant contacted the EEO Counselor on October 21, 2021, more than forty-five days after the allegedly discriminatory events. The Agency noted that Complainant did not claim he was unaware of the time limit for contacting an EEO Counselor. Further, it reasoned that Complainant had constructive knowledge of the deadline because an EEO poster, describing the time limit, was displayed at his facility and he had previously engaged in EEO activity. Additionally, the complaint was dismissed on the grounds that it was untimely filed, pursuant to 29 C.F.R. § 1614.107(a)(2). According to the Agency, Complainant filed the complaint 27 days after receipt of the Notice of Right to File an Individual Complaint (“Notice”). The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the discrimination is ongoing and therefore, his contact was timely. Specifically, he contends that while he was first denied telework on August 6, 2021, the denial continues since he still has not been approved, as of February 25, 2022. Moreover, Complainant asserts that he was unaware of the 45-day time limit for contacting an EEO Counselor. With respect to the untimely filing of his complaint, he submits that he had the COVID-19 virus in late December, testing positive on December 29, 2021, and again on January 6, 2022. Thus, he was unable to go out in public and file his formal complaint. According to Complainant, he tested negative on January 19, 2022 and filed his complaint that day. He emphasizes that he was not able to leave his bedroom, let alone his home, since December 29, 2021. The Agency submitted no argument on appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a 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). In this case, the record reflects that Complainant received the Notice at his address of record on December 23, 2021. Therefore, the formal complaint needed to be filed on or by January 7, 2022 to be considered timely. Complainant does not dispute that his January 19, 2022 filing was beyond the fifteen-day deadline. He contends that he was unable to timely file the complaint because he tested positive for the COVID-19 virus. Where a complainant claims to have missed an EEO deadline for medical reasons, the Commission has only granted extensions where the complainant provided medical evidence establishing that they were so physically or emotionally incapacitated during the relevant time frame that they were unable to meet the deadline. See Carolyn M. v. U.S. Postal Serv., EEOC 2022001969 3 Appeal No. 2021004601 (Jan. 11, 2022); Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (March 8, 1989); Dos Santos v. Dep’t of Veterans Affs., EEOC Appeal No. 01992476 (Jan. 3, 2001). Here, while Complainant argues on appeal that he was seriously ill with COVID- 19, he has not provided evidence of his incapacitation for the entire 15-day time period. He asserts that he tested positive for COVID-19 on December 29, 2021, and again on January 6, 2022. There is no evidence, however, to support this assertion nor establish that he was so incapacitated by his condition that he was prevented from timely filing his complaint. Moreover, we note that the dates identified by Complainant regarding his positive test results do no account for the entire time period for timely filing.2 After careful review of the record, we further find that Complainant failed to present medical evidence that would justify waiving the filing deadline. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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. 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 2 In light of our affirmance of the Agency’s decision on these grounds, we need not address the Agency’s alternative grounds for dismissal. 2022001969 4 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. 2022001969 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 April 27, 2022 Date