Rosendo F.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jun 21, 2019

0120181775 (E.E.O.C. Jun. 21, 2019)

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

Rosendo F.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120181775
Agency No. FS201800262

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated April 13, 2018, 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. Upon review, the Commission finds that
Complainant’s complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to
the untimely filing of the formal complaint.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Director
of Training Development and Standards, GS-1811-14 at the Agency’s Forest Services facility in
Glynco, Georgia. On December 14, 2017, Complainant initiated informal EEO counseling to
allege that she was subjected to discrimination based on sex, and reprisal (prior EEO activity),
when on December 13, 2017, she learned that she was not selected for a GS-1811-14/15, Assistant
Director - Office of Professional Responsibility position. The complaint was not resolved, and on
March 9, 2018, she was issued the Notice of Right to File (NRF), a formal EEO complaint via
certified mail return receipt requested. The record indicates that the NRF was delivered to
Complainant’s home and received on March 12, 2018, as evidenced by a certified mail return
receipt contained in the record. On April 3, 2018, Complainant filed her formal EEO complaint to
the Agency.

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.
0120181775

2
The Agency issued a letter acknowledging receipt of the formal EEO complaint on April 4, 2018.
On April 13, 2018, the Agency issued its Final Agency Decision, (FAD) dismissing the complaint
as untimely because it was not filed within 15 calendar days of March 12, 2018, the date that
Complainant received the NRF. Complainant filed the instant appeal of the FAD on May 6, 2018.
CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the 15-day time limitation period
should be tolled because of “illness, work and travel.” She also asserts that the Agency was aware
of her intent of wanting to file a formal complaint, explaining that on March 8, 2018, she sent an
email to “Human Resources, EEO, and other Agency officials” advising them of her intent to file
a formal EEO complaint in the instant matter.

The Agency reiterates its position and requests that the Commission affirm its FAD dismissing the
complaint for untimeliness.

ANALYSIS AND FINDINGS

The regulation set forth at 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 fifteen (15) days of
receiving notice of the right to do so.

The record discloses that Complainant received the notice of right to file a formal complaint on
March 9, 2018. 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
April 3, 2018, which is beyond the limitation period.

On appeal, Complainant has not offered an adequate justification to warrant an extension of the
time limit for filing the complaint. To the extent that she maintained that an unspecified illness
prevented her from filing her complaint in a timely manner, we have consistently held that, in cases
involving physical or mental health issues, an extension is warranted only where a complainant is
so incapacitated by their conditions that they are unable to meet the regulatory time limits. See
Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989); Crear v. v. U.S. Postal
Serv., EEOC Request No. 05920700 (Oct.29, 1992). Here, the evidence is insufficient to establish
that Complainant was incapacitated to a degree that prevented her from timely filing her formal
complaint. We also find that her prior indication that she intended to file a formal complaint is not
a substitute for actually filing a timely complaint.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

0120181775

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.

0120181775

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 21, 2019
Date