0120181824
08-16-2018
Man H,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Man H,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181824
Agency No. 4G780008118
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 19, 2018, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Service, EAS 17 at the Agency's Woodway Station facility in Waco, Texas.
On April 5, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), color (White), disability (cervical pinched-nerve), age (51), and in reprisal for prior protected EEO activity when:
1. On January 23, 2018 his request for reasonable accommodation was denied; and
2. On February 13, 2018, his request to reconsider the decision regarding his accommodation was also denied.
In its final decision dated April 19, 2018, the Agency dismissed the formal complaint on the grounds that it was not timely filed, in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined that Complainant failed to file his formal complaint within fifteen (15) days of his receipt of the Agency's Notice of Right to File a Formal Complaint (Notice). This appeal followed.
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 days of receiving notice of the right to do so.
EEOC regulations further provide in 29 C.F.R. � 1614.604(d), that the time period for filing a formal complaint is counted from the first day after the receipt of the notice of right to file a formal complaint and includes the last day of the 15-day period, unless it falls on a Saturday, Sunday or Federal Holiday, in which case the period is extended to include the next business day.
The Commission has held that the agency bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. The record discloses that Complainant received the Agency's Notice on March 17, 2018, as evidenced by his signature on a delivery confirmation receipt. Moreover, in his formal complaint, Complainant acknowledges that he received the Agency's Notice on March 17, 2018 as well. The Notice indicated that Complainant had to file a formal complaint within 15 calendar days of its receipt. The 15th calendar day after March 17, 2018 was Sunday, April 1, 2018. When the last day of a time period falls on a Saturday, Sunday, or Federal holiday, the period shall be extended to include the next business day. 29 C.F.R. � 1614.604(d). Thus, Complainant had to file a formal complaint by April 2, 2018. However, Complainant did not file a formal complaint until April 5, which is beyond the limitation period.
On appeal, Complainant does not allege that he was unaware of the relevant time limitations for filing an EEO complaint. Instead, Complainant contends that he was unable to file his formal complaint in a timely manner because he had undergone outpatient surgery on March 23, 2018 followed by "15 days of strong pain reliever." We are not persuaded by Complainant's argument to extend the time period for filing his formal complaint. Complainant has failed to offer adequate justification to warrant an extension of the time limit for filing a formal EEO complaint. We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989).
Here, other than his bare assertion, the record contains no evidence that Complainant was so incapacitated by his post out-patient surgery between March 17, 2018 and April 2, 2018 that he was unable to meet the 15-day time limit.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons set forth herein.
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.
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
August 16, 2018
__________________
Date
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.
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