Alex W,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 30, 2019

2019001862 (E.E.O.C. Oct. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alex W,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019001862

Agency No. 2003-0010-2018101292

DISMISSAL OF APPEAL

By Notice of Appeal postmarked December 26, 2018, Complainant filed an appeal with the
Equal Employment Opportunity Commission (EEOC or Commission) from the November 19,
2018 final Agency decision (FAD) concerning an EEO 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.

On appeal, Complainant requests that the Commission “grant [her] appeal that has exceeded the
30-day notice.” Specifically, Complainant states that she had eye surgery on December 6, 2018,
and that her recovery extended to three weeks. Complainant further states that she is “just able
to read without straining and [she] wanted to gather the necessary documentation to submit with
this appeal.”

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. U.S. Postal Service, EEOC Request No. 05890164 (Mar. 8, 1989). Here, Complainant
contends that she required a three-week recovery from eye surgery.

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.
2019001862

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However, there is nothing in the record, such as medical documentation, supporting a finding
that Complainant was so incapacitated during the applicable 30-day period as to prevent her from
timely filing the instant appeal. Therefore, Complainant has not presented adequate justification
for extending the limitation period beyond 30 days.

We note, moreover, that the five-week federal government shutdown beginning on December 22,
2018 is not dispositive in this case because the shutdown occurred after Complainant’s 30-day
filing deadline to submit her appeal.

CONCLUSION

Accordingly, Complainant's December 26, 2018 appeal is hereby dismissed. See 29 C.F.R.
§ 1614.403(c).

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:
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.
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

October 30, 2019
Date