Rosendo F.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.Download PDFEqual Employment Opportunity CommissionJun 21, 20190120181775 (E.E.O.C. Jun. 21, 2019) Copy Citation 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 Copy with citationCopy as parenthetical citation