0120181802
08-07-2018
Nicki B,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
Nicki B,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181802
Agency No. 4G760009917
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's March 29, 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 a City Letter Carrier, Q-1, at Oakwood Station in Arlington, Texas.
On March 8, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of religion (Christian) and reprisal for engaging in prior protected EEO activity when:
1. On May 19, 2017, her supervisor ("S1"), issued her a Letter of Warning,
2. On June 22, 2017, S1 berated her in front of her coworkers,
3. On July 10, 2017, she was issued a Letter of Warning, and
4. On August 9, 2017, S1 told her that "GOD will get you."
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.
ANALYSIS AND FINDINGS
Under 29 C.F.R. �1614.107(a)(2), an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c). Pursuant to 29 C.F.R. �1614.106(b), a written complaint must be filed with the agency that allegedly discriminated against the complainant within 15 calendar days after the date of receipt of the Notice of Right to File an Individual Complaint ("Notice").
The agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). Here, the Agency provides sufficient evidence, and Complainant does not dispute, that she received Notice on October 6, 2017. The Notice clearly informs Complainant of the 15-day filing deadline. Taking weekends into account, Complainant had to file her Formal Complaint no later than October 23, 2017.
On October 20, 2017, Complainant's husband submitted a written request to the Agency on Complainant's behalf, asking for Complainant to be provided an additional six months to file her complaint because "she [remains] in the hospital from surgery and cannot make the deadline." The record reveals that the Agency received the request on October 23, 2017. Complainant states that she never heard back so she followed up with a phone call on an unspecified date, and a January 2, 2018 letter asking for the status of her extension request. Complainant ultimately filed her formal complaint on March 8, 2018.
On appeal, Complainant raises multiple arguments regarding the Agency's processing of her complaint, and asserts that in her case, an extension to the filing deadline is warranted.
Extension Requests
Under 29 C.F.R. �1614.604(c), the Commission or the agency shall extend the time limit, when a complainant 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 her control from contacting the EEO 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 filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Claims of incapacity must be supported by medical evidence of incapacity. See Crear v. United States Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992)
Based on the October 20, 2017 extension request submitted by her husband, Complainant appears to argue that she was prevented from timely filing because she was physically incapacitated. Complainant provides more detail in her January 2, 2018 follow up letter to the Agency, explaining that she received a total hip replacement and due to complications related to the surgery, remained hospitalized for an additional two weeks. However, there is no medical evidence (or even the dates of the surgery and hospitalization) in record to support a finding that Complainant was so incapacitated throughout the applicable period as to prevent her from timely filing. We have previously held that that a note from a complainant's spouse stating that the complainant is incapacitated is not sufficient evidence to warrant an extension. See Jenkins v. Dep't of Commerce, EEOC Appeal No. Appeal No. 0120002135 (May 24, 2000).
Even assuming, arguendo, that Complainant provided the necessary medical evidence that she was incapacitated during the filing period, an extension is not warranted because she has not justified her failure to file after the period of incapacity. See Fontenot v. United States Postal Serv., EEOC Request No. 05990216 (Jun. 4, 1999), Steese v. Equal Employment Opportunity Commission, EEOC Appeal No. 01996486 (Apr. 27, 2000). The January 2, 2018 follow up letter demonstrates Complainant was not so incapacitated that she could not file her complaint, yet she waited another two months. Her argument that she was awaiting a response from the Agency is not adequate justification for an extension.
New Claims & Dissatisfaction with Complaint Processing
Allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013) When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110.
On appeal, and in an April 9, 2018 letter to the Agency, Complainant repeatedly voices her dissatisfaction with the Agency's failure to respond to her extension requests, or even acknowledge her requests in the final decision. She also alleges that the Agency improperly assigned material submitted as part of a new EEO complaint to the instant complaint. The record includes a completed Pre-Complaint Counseling Form (Reference No. PRE-0165412018) with three new allegations of harassment, signed and dated by Complainant March 7, 2018, received by the Agency on March 19, 2018. Complainant contends that the Agency has taken no action to process her new claims as a new complaint.
We find the Agency properly addressed Complainant's allegations about the processing of her complaint(s). In an April 17, 2018 response letter, the Agency informed Complainant that an inquiry would be conducted and Complainant would receive a separate decision on the matter, in accordance with MD-110. Complainant's allegations about the timeliness and processing of her new complaint must be addressed as part of the record for the new complaint. As these new allegations and related issues are not before us, they cannot be adjudicated here.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 7, 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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