[Redacted], Dick M., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 28, 2022

Appeal No. 2022003835 (E.E.O.C. Sep. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dick M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2022003835 Agency No. DIA-2022-00021 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 2, 2022, dismissing a formal complaint alleging 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Program Manager, GS-11, at the Agency’s Defense Intelligence Agency in Washington, D.C. On May 3, 2022, Complainant filed a formal EEO complaint, that was subsequently amended, which claimed discrimination based on race and disability. On June 2, 2022, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. The Agency reasoned that Complainant received, by email, the Notice of Right to File a Formal Complaint (Notice) on April 11, 2022. The Agency found, however, that Complainant did not file his formal complaint, via email, until May 3, 2022, which was beyond the 15-day filing period. 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. 2022003835 2 The instant appeal followed. ANALYSIS AND FINDINGS The regulation 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 Agency properly dismissed the formal complaint on the grounds of untimely filing. Documentation in the record indicates that the Notice was emailed to Complainant on April 5, 2022. A copy of the Notice states, in pertinent part, that In order to file a formal discrimination complaint, you must complete and sign the enclosed DIA Form 207 and email the completed and signed form within 15 calendar days after receipt of this notice . . . (emphasis in original). Complainant responded, via email, on April 11, 2022, confirming receipt of the April 5, 2022 Notice. Therefore, Complainant had fifteen days from April 11, 2022, or until April 26, 2022, to timely file his formal complaint. However, Complainant waited until May 3, 2022, to email his formal complaint resulting in an untimely filing. We note that on appeal, Complainant appears to attribute his untimely filing to being under a doctor’s care. 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, Complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, Complainant states in his formal complaint that he was “incapacitated” and provided the information requested from the intake process. However, Complainant does not submit any medical documentation regarding his condition. Therefore, there is nothing in the record, such as medical documentation, supporting that Complainant was so incapacitated during the applicable fifteen-day period as to prevent him from timely filing the instant complaint. CONCLUSION The Agency’s final decision to dismiss the formal complaint on the grounds of untimely filing is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 2022003835 3 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022003835 4 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 September 28, 2022 Date