[Redacted], Freddy V, 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionJan 31, 2023Appeal No. 2022001692 (E.E.O.C. Jan. 31, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddy V,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022001692 Hearing No. 410-2020-00321X Agency No. 9R1M1900909H20 DISMISSAL OF APPEAL On February 8, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the October 14, 2021 Agency’s final order implementing a September 14, 2021 EEOC Administrative Judge’s (AJ’s) decision without a hearing finding no discrimination regarding a formal EEO complaint alleging 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. Complainant asserts that the Agency never issued a final order in this matter and thus he is appealing the AJ’s Decision. In addition, Complainant asserts that he experienced various health issues from August 2021 to November 13, 2021, and was off from work during this time. In addition, he asserts that his representative was receiving treatments for cancer from May 2021 to December 2021.2 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. 2 The record reflects that Complainant’s representative is a non-attorney. 2 2022001692 In response to Complainant’s appeal, the Agency asserts that Complainant’s appeal is untimely filed. The Agency asserts that the final order was delivered to Complainant’s address of record on October 19, 2021 via FedEx. The Agency submits with its response brief a copy of a FedEx tracking printout indicating that the final order was delivered to Complainant’s address of record on October 19, 2021. The tracking receipt includes a signature from an individual sharing Complainant’s last name. The record reflects, as set forth above, that the Agency’s October 14, 2021 final order was delivered to Complainant’s address of record on October 19, 2021 and signed by an individual sharing Complainant’s last name.3 The final order properly set forth that Complainant had thirty calendar days after receipt of the final order to file his appeal with the Commission. We are not persuaded by Complainant’s assertion that he did not receive the Agency’s final order. When a delivery receipt has been signed by an unidentified individual at a complainant’s address on a certain date to indicate delivery of a document, there is a presumption of constructive receipt of the document by the complainant on that date. See Fontanella v. Gen. Serv. Admin. EEOC Appeal No. 05940131 (April 10, 1995). A complainant may rebut this presumption by demonstrating that the individual who signed for the document was not a family or household member of suitable age or discretion to do so. See id., Baunchand v. U.S. Postal Serv., EEOC Request No. 05920389 (May 29, 1992). In the instant matter, Complainant’s assertions that the Agency did not issue a final order do not rebut this presumption. Complainant also asserts that he experienced various health issues from August 2021 to November 13, 2021. When a complainant claims that a physical or mental health condition prevents them from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render them physically unable to make a timely filing. See Pan v. U.S. Postal Serv., EEOC Appeal No. 0120131360 (June 25, 2013); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992); Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (March 8, 1989). There is nothing in the record (such as medical documentation) reflecting that Complainant was so incapacitated during the applicable period to prevent the timely filing of an appeal. Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal. Accordingly, Complainant's February 8, 2022 appeal is hereby DISMISSED. See 29 C.F.R. § 1614.403(c). 3 The record also reflects that the final order was sent to Complainant’s non-attorney representative via email. 3 2022001692 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). 4 2022001692 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 January 31, 2023 Date Copy with citationCopy as parenthetical citation