Doloris W.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Jun 2, 2020

2020002042 (E.E.O.C. Jun. 2, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doloris W.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020002042 Agency No. HS-CBP-00497-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 13, 2019, dismissing a formal 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 During the period at issue, Complainant worked as a CBP Officer at the Agency’s facility in San Diego, California. On August 2, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female/pregnancy). In its final decision dated December 13, 2019, the Agency dismissed Complainant’s formal complaint on the grounds its was untimely filed. The Agency reasoned that Complainant received the Notice of Right to File a Formal Complaint (Notice) on March 1, 2019, but did not file her formal complaint until August 2, 2019, outside of the applicable time limit. 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. 2020002042 2 The instant appeal followed. On appeal, Complainant requests that we extend the applicable time limit. Complainant references various circumstances in support of this request such as the following: a government shutdown and being furloughed and that she was in the process of relocating. Finally, Complainant states “at the time the response was due, I was hospitalized due to complications [from] pregnancy and then giving birth by C-section. Of course, following the birth, I had to endure the stress of childbirth and a newborn as a first-time parent.” 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). Complainant acknowledged receiving the Notice via email dated March 1, 2019. In her email, Complainant stated in response to the Notice “Got it. I’ll work on it over the weekend and send them pdf back to you on Sunday.” The record contains a copy of the Notice. The Notice informed Complainant that she needed to file her formal complaint within 15 days of receipt of the Notice. However, Complainant did not file her formal complaint until August 2, 2019, beyond the applicable time limit. We do not find sufficient justification to extend the applicable time limit. Complainant asserts that at the time the response was due, she was hospitalized with childbirth complications. 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 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). The record does not contain any medical documentation during the period at issue that Complainant was so incapacitated during the entire period (approximately a five-month period from when she received the Notice and filed the formal complaint) that she was unable to file a formal complaint.2 Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. 2 The record contains a notice from a doctor dated October 22, 2018. The doctor indicated that Complainant is pregnant and is classified as a high-risk pregnancy. The doctor stated that Complainant would benefit from continuity with him. The October 22, 2018 doctor’s note was issued before the Notice dated March 1, 2019, and does not address the five-month period from when Complainant received the Notice to when she filed her formal complaint. 2020002042 3 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. 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. 2020002042 4 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 June 2, 2020 Date