[Redacted], Iesha P, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Dec 15, 2022

Appeal No. 2022003902 (E.E.O.C. Dec. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iesha P,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003902 Agency No. 4J-500-0035-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 17, 2022, dismissing a formal complaint alleging unlawful employment discrimination in violation of 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 Postal Service Employee, Distribution Clerk, Grade Level 6A, at the Agency’s post office facility in Council Bluffs, Iowa. On February 3, 2022, Complainant contacted an Agency EEO Counselor. The parties did not achieve resolution though informal counselling. On May 16, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination based on disability. In a final decision dated June 17, 2022, the Agency dismissed the formal complaint for being untimely filed. The Agency determined that Complainant had received the notice of her right to file a formal EEO complaint on April 14, 2022. The Agency stated that Complainant missed 29 C.F.R. §1614.106(b)’s 15-day deadline on April 29, 2022. 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. 2022003902 2 The Agency maintains that Complainant’s formal complaint was untimely filed because it was not postmarked until 32 days after she had received the notice of right to file the formal EEO. The instant appeal followed. On appeal, Complainant contends that the Agency caused her to file her formal complaint untimely. Specifically, Complainant maintained that the Agency engaged in settlement negotiations from April 15, 2022, to May 15, 2022. According to Complainant, she understood that settlement negotiations kept her case current and open. Complainant stated she was unaware that the 15-day time limit was not tolled by the parties attempt to negotiate a settlement. In the alternative, Complainant argued that her untimely formal complaint should be excused because she was infected with COVID-19 from April 17, 2022, until May 20, 2022. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that the Agency shall dismiss a complaint for failure to comply with the applicable time limits. EEOC Regulation 29 § C.F.R. 1614.106(b) requires a complainant to file a formal complaint within fifteen days of receiving notice of the right to do so. Unless stated otherwise, EEOC’s time limits are in calendar days. 29 C.F.R. § 1614.604(a). To be deemed timely filed, a document must be received or postmarked before the time limit expires. 29 C.F.R. § 1614.604(b). Time limits are subject to waiver, estoppel, or equitable tolling. 29 C.F.R. § 1614.604(c). Time limits start the first day after notice and include weekends or holidays; if the last day falls on a weekend or holiday, then the time limit extends to the next business day. 29 C.F.R. § 1614.604(d). It is undisputed that the notice of right to file a formal complaint was received by Complainant on April 14, 2022. The Agency’s notice explicitly repeated the fifteen-day deadline for Complainant to file a timely formal EEO complaint. The Agency’s notice read, in relevant part: [Y]ou have 15 days from the date of receipt of this letter to file a timely formal complaint. Your complaint could be subject to dismissal in accordance with 29 CFR Part 1614.107 if not filed within the 15-day time limit. Your complaint will be deemed timely if it is postmarked before the expiration of the 15-day time limit. Although the notice indicated that Complainant had to file a formal complaint within fifteen calendar days of its receipt, Complainant’s formal complaint was not postmarked until May 16, 2022, which was beyond the applicable limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Nothing in the record that supported Complainant’s understanding that her settlement negotiations with the Agency extended the applicable time limit provided in the notice of right to file. 2022003902 3 We have previously held that settlement negotiations do not toll the deadline for EEO counselor contact. Similarly, here, because the Agency did not expressly grant Complainant an extension during settlement negotiations, we likewise find that the Agency properly dismissed pursuant the formal complaint as untimely in accordance with to 29 C.F.R. § 1614.107(a)(2). We further reject Complainant’s appellate argument that the fifteen-day time limit was tolled because on May 15, 2022, she advised the EEO Counselor that she had been infected with COVID-19. EEOC has consistently held, that, for physical or mental health complications, extensions are warranted only where a complainant becomes incapacitated to such an extent that they are unable to meet regulatory time limits. Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). In the present matter, Complainant failed to provide medical documentation which proved that medical incapacitation had rendered her unable to timely file her formal EEO complaint. CONCLUSION The formal complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The Agency's final decision 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: 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 2022003902 4 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. 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. 2022003902 5 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 December 15, 2022 Date