0120151568
01-08-2016
Sheena S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sheena S.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120151568
Agency No. APHIS201500012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 2, 2015, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst (GS-12) at the Agency's Animal and Plant Health Inspection Service (APHIS) facility in Riverdale, Maryland.
On January 2, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (pregnancy), color (brown), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In or around January 2014, APHIS failed to advance her career, including by failing to assign her a mentor, and denying her leadership training;
2. On October 3, 2014, she received a Letter of Caution;
3. On October 3, 2014, and on other unspecified dates, APHIS denied her training opportunities, including Freedom of Information Act (FOIA) training and Human Resources (HR) retirement cross-training;
4. In November 2014, she learned that APHIS rated her "Fully Successful," instead of "Superior," on her 2014 Performance Evaluation; and
5. Since 2013, APHIS subjected her to various incidents of harassment, including:
a. On unspecified dates, her second-line supervisor hampered her professional development;
b. On unspecified dates, her first-line supervisor undermined her,
c. Belittled her, and behaved in a condescending manner towards her;
d. In or around February 2014, management excluded her from meetings;
e. In March 2014, her supervisor commented to her, "I hope you do not do this [get pregnant] anytime soon"; and
f. On or around September 15, 2014, and other unspecified dates, her supervisor criticized her work, time, and attendance.
The Agency dismissed all claims pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint, because Complainant did not file her formal complaint until January 2, 2015 and her last day to timely file was December 24, 2014.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of 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 record discloses that Complainant received the notice of right to file a formal complaint on December 9, 2014. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until January 2, 2015, which is beyond the limitation period.
On appeal, Complainant submits that her untimely filing of her formal complaint should be excused because she had recently given birth and was suffering postpartum depression during this period. When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. United States Postal Service, EEOC Request No. 05890164 (March 8, 1989). Complainant's statement alone does not support a finding that she was so incapacitated throughout the applicable period as to prevent her from timely submitting her formal complaint. Complainant has therefore failed to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c), for extending the filing period.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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:
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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. 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, Director
Office of Federal Operations
January 8, 2016
__________________
Date
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.
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