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

Equal Employment Opportunity Commission

Dec 22, 2022

Appeal No. 2023000063 (E.E.O.C. Dec. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janet B,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000063 Agency No. 4E926007822 DECISION Complainant appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), from the Agency's September 1, 2022 dismissal of her 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 At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee ("PSE"), P-06, at the Agency’s South Pasadena Post Office in Pasadena, California. On August 9, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), sexual orientation, disability, and reprisal for prior protected EEO activity when: 1. On or about April 9, 2022, she was sent back to her home station; 2. From April 9, 2022, through June 8, 2022, she was denied a reasonable accommodation when she was not provided Light Duty work; and, 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. 2023000063 2 3. From June 8, 2022, and continuing, her work hours have been reduced. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. §1614.107(a)(2) provides that 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 and §1614.106, unless the agency extends the time limits in accordance with §1614.604(c). Under 29 C.F.R. §1614.106(b) a complainant must file their written complaint with the agency that allegedly discriminated against them within 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). The statutory 15-day time limit is subject to waiver, estoppel, and equitable tolling pursuant to 29 C.F.R. § 1614.604(c). Pursuant to 29 C.F.R. § 1614.604(c), the agency or the Commission shall extend the time limits when the individual shows that they were not notified of the time limits and were not otherwise aware of them, that they did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence they were prevented by circumstances beyond their control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, the Agency has provided evidence, and Complainant does not dispute, that she received the Notice of Right to File (“NRTF”) on July 7, 2022. The NRTF provided clear instructions for filing, including the 15-day requirement. Complainant did not file her formal complaint until August 9, 2022, which is beyond the limitation period. On appeal, Complainant asks the Commission to extend deadline to file in her case as permitted under 29 C.F.R. § 1614.604(c) because she has serious mental health conditions, which prevented her from timely filing. As supporting evidence, Complainant provided her medical records for mental health treatment from March through September 2022, establishing her diagnoses and symptoms predated receipt of the NRTF. Complainant also explains that July 2022 was “particularly difficult” as her “symptoms were worse than usual and she was unable to perform complex functions, including meeting the EEO deadline.” It is well established that a complainant's failure to meet a filing deadline will be excused for mental or physical health reasons only if the complainant establishes that they were so physically or emotionally incapacitated that they were unable to make a timely filing. See Ronny S. v. Dep’t of Veterans Affairs, EEOC Appeal Nos. 0120162302 (Nov. 10, 2016) citing Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). A claim of incapacitation must be supported by medical evidence of incapacity during the filing window. 2023000063 3 Ronny S. citing Crear v. United States Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992) (Complaints of decreased mental and physical capacity, without medical evidence of incapacity, do not warrant extension of time limits) other citations omitted. The medical documents Complainant provided do not establish that she was incapacitated for the duration of the filing window, from July 8 through 22, 2022. None of the documents reflected treatment during this time frame, and there is no statement from a medical professional attesting that Complainant was unable to timely file due to her mental health conditions. See, e.g. Maddux v. United States Postal Serv., EEOC Request No. 05980302 (Aug. 5, 1999) (extension of EEO time frame justified based on a psychiatrist's statement that the complainant's mental condition rendered her unable to comprehend her legal rights and responsibilities during the relevant time), Sohal v. United States Postal Serv., EEOC Request No. 05970461 (Apr. 24, 1997) (Psychiatrist's statement that complainant's severe depression and anxiety rendered him unable to make decisions found sufficient to justify extension). Complainant has therefore failed to present adequate justification, pursuant to 29 C.F.R. § 1614.604(c), for extending the filing period. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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). 2023000063 4 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. 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. 2023000063 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 22, 2022 Date