[Redacted], Devon H., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2023000974 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Devon H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2023000974 Agency No. ARBRAGG22AUG03513 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 28, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency’s US Army Security Assistance Training Management Organization in Fort Bragg, North Carolina. On October 3, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when, on June 24, 2022, during a teleconference call with an Administrative Judge and Agency Counsel (pertaining to Agency Case No. ARBRAGG21JUL02488), the parties were discussing whether Complainant wanted a person named as a defendant and Agency Counsel replied, “I am not going to do [Complainant’s] work for him.” Complainant stated that he did not ask for or want Agency Counsel to do his work for him. 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. 2023000974 2 The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed. On appeal, Complainant argues that he should be given an extension because he gets forgetful and has been diagnosed with anxiety and depression. ANALYSIS AND FINDINGS The regulation set forth 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within 15 days of receiving notice of the right to do so. In its final Agency dismissal, the Agency described that Complainant was provided with adequate notice of the 15-day deadline on September 13, 2022, because the Notice was delivered to Complainant on September 13, 2022, by email. The Agency indicated that Complainant did not file his formal complaint until October 3, 2022, which was beyond the 15-day timeframe. The record confirms that on September 13, 2022, the EEO Counselor sent Complainant an email accompanied with the Notice, notifying him that he had 15 calendar days from the date of receiving the Notice to file a formal complaint. The EEO Counselor asked Complainant to acknowledge receipt of the email by signing the attached Notice. Complainant signed the Notice with a wet signature, wrote September 13, 2022 as the date of receipt, and sent the Notice back the EEO Counselor the following day. On appeal, Complainant does not dispute that he received the Notice on September 13, 2022, or that he failed to file his formal complaint within the 15-day time-limit. Rather, he argues that he should be given an extension due to anxiety and depression. The Commission has previously held, that in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by their condition that they are unable to meet regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998). Claims of incapacity must be supported by medical evidence of incapacity. See Crear v. United States Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992) (complaints of decreased mental and physical capacity, without medical evidence of incapacity, does not warrant extension of time limits). In the present case, Complainant has not supported his allegation with medical evidence. Without medical evidence showing mental illness during the relevant time period, the Commission is not persuaded that Complainant was so incapacitated that he could not file his complaint in a timely manner. Accordingly, the Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED. 2023000974 3 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 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). 2023000974 4 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 March 30, 2023 Date