Mahalia P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 13, 2019

2019001614 (E.E.O.C. Sep. 13, 2019)

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

Mahalia P.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 2019001614

Agency No. 200I06262018106277

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's December 31, 2018 dismissal of 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Advance Medial
Support Assistant, GS-6, in the Business Office of the Veterans Affairs Medical Center
(“VAMC”) in Nashville Tennessee.

On December 27, 2018, Complainant filed a formal EEO Complaint alleging that the Agency
subjected her to discrimination on the basis of reprisal (prior protected activity)2 when, on

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 Filing EEO complaints and whistleblower activity. We note that the Commission does not have
jurisdiction over Whistleblower Protection Act claims. See Reavill v. Dep’t of the Navy, EEOC
Appeal No. 05950174 (July 19, 1996).
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September 13, 2018, she was issued a proposed removal; and on September 27, 2018, she was
forced to resign.

The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.106(b) and § 1614.107(a)(2), due
to the untimely filing of the formal complaint.

The instant appeal followed.

ANALYSIS AND FINDINGS

Under 29 C.F.R. § 1614.106(b) a written complaint must be filed with the agency that allegedly
discriminated against the complainant within fifteen (15) calendar days after the date of receipt
of the Notice of Right to File an Individual Complaint required by 29 C.F.R. §1614.105(d), (e),
or (f). A complaint is deemed timely if it is received or postmarked before the expiration of the
applicable filing period, or in the absence of a legible postmark, if it is received by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. §1614.604(b). An
agency shall dismiss a complaint which is not filed within the fifteen day time period. See 29
C.F.R. §1614.107(a)(2).

The record reveals that Complainant received notice of her right to file her Formal Complaint on
December 10, 2018, making deadline to timely file December 26, 2018. However, she waited
until December 27, 2018 to file. It is undisputed that Complainant was aware of the 15 day filing
period. On appeal, Complainant asks the Commission to excuse the delay, as she was physically
unable to timely file, having undergone 6 eye surgeries during the filing period, the first of which
took place the day she received the Notice of Right to File.

Under 29 C.F.R. §1614.604(c), the 15 day time limit is subject to waiver, estoppel, and equitable
tolling. Our regulations provide that an Agency or the Commission shall extend the time limits
when the individual shows that she was not notified of the time limits and was not otherwise
aware of them, that she did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence she was prevented
by circumstances beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.

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, she must be so
incapacitated by the condition as to render her physically unable to meet the regulatory time
limits. See Davis v. United States Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998);
Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Further, in
order to warrant an extension, the claim of incapacity must be supported by medical evidence of
incapacity.

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See Crear v. United States Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992);
Complainant v. United States Postal Serv., Appeal No. 0120151307 (Aug. 10, 2015) (excusing a
1day delay in filing based on medical documentation supporting that the complainant was
diagnosed with acute depression and underwent carpel tunnel surgery during the filing period
and was experiencing side effects of pain medication).

Complainant provides a signed doctor’s note confirming that she underwent procedures on her
left eye on December 10, 13, and 14, 2018, and procedures on her right eye on December 17, 19,
and 20, 2018. She also explains that she attempted to timely file by starting the Formal
Complaint form on December 26, 2018, but due to her surgeries, her “vision became extremely
blurry, her head began to hurt, she became nauseous, dizzy, and had to lay down,” making her
“physically unable to complete the form.”

Under the unique circumstances presented by this case, we exercise our discretion and find
adequate justification for excusing Complainant missing the complaint filing deadline by one
day. See 29 C.F.R. §1614.604(c).

CONCLUSION

The agency's final decision dismissing Complainant's complaint is REVERSED. The complaint
is REMANDED to the Agency for further processing in accordance with the following ORDER.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision was issued. The Agency shall
issue to Complainant a copy of the investigative file and also shall notify Complainant of the
appropriate rights within one hundred fifty (150) calendar days of the date this decision was
issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of
receipt of Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory.
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Within seven (7) calendar days of the completion of each ordered corrective action, the Agency
shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital
format required by the Commission, referencing the compliance docket number under which
compliance was being monitored. Once all compliance is complete, the Agency shall submit via
FedSEP a final compliance report in the digital format required by the Commission. See 29
C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when
previously not uploaded, and the Agency must send a copy of all submissions to the Complainant
and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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.
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. 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.
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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

September 13, 2019
Date