[Redacted], Kylee C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2022001866 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kylee C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001866 Agency No. 2003-0020-2021105298 DECISION On February 23, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 21, 2022, dismissing 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. 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 GS-11 Loan Specialist for the Agency’s Denver, Colorado Regional Loan Center. On January 10, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of age (born in December 1969) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 2 1. On multiple occasions, the Loan Production Officer and the Assistant Loan Production Officer responded to Complainant’s scheduling requests/questions with answers that involved Complainant’s daughter, her daughter’s school hours, and possible school closures related to covid-19, which gave Complainant the 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. 2 Complainant also alleged discrimination based on parental status. The Agency dismissed parental status as a basis pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. 2022001866 2 impression that being a single parent with a young child was undesirable; and 2. On August 12, 2021, the Agency terminated Complainant from her Loan Specialist position during her probationary period. The Agency sent Complainant notice of right to file a discrimination complaint on November 18, 2021, and Complainant received the notice on November 24, 2021. Complainant filed her EEO complaint on January 10, 2022. The Agency dismissed Complainant’s EEO complaint pursuant to 29 C.F.R. § 107(a)(2) as untimely filed. Complainant explained her untimely filing by stating that, while waiting for assistance from the union to file her complaint, she felt ill and was in bed for nearly three weeks, was diagnosed with covid-19 on December 13, 2021, and “was able to get back up and running” around December 23, 2021. Administrative File (AF) at 50-51. The Agency determined that Complainant’s explanation was insufficient to waive the 15-day time limit. The instant appeal followed. On appeal, Complainant requested an extension of the time to file a statement or brief in support of her appeal because she was seeking legal counsel, and the Commission granted an extension of 10 business days. Complainant argues that 10 business days was not enough time to hire an attorney, have them review her case, and prepare a brief. Complainant contends that she was “very ill” with covid-19 during the time she was supposed to file her EEO complaint. Complainant also argues that it was not clear that she would not be able to pursue her EEO complaint if she did not file within 15 days of receipt of the notice of right to file. In response to Complainant’s appeal, the Agency asserts that Complainant was on notice throughout the EEO process of the 15-day deadline for filing her EEO complaint. The Agency contends that, although she was diagnosed with covid-19, Complainant did not establish that she was so incapacitated that she could not file her EEO complaint in a timely manner. The Agency also argues that, even assuming arguendo that Complainant was incapacitated, she did not file her EEO complaint within 15 calendar days of December 23, 2021. ANALYSIS AND FINDINGS The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) as untimely filed. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in § 1614.106(b), which requires filing a complaint must be filed within 15 days of receipt of the notice of right to file. This 15-day time limit is subject to waiver, estoppel, and equitable tolling in accordance with 29 C.F.R. § 1614.604(c). The record discloses that Complainant confirmed receiving the notice of right to file a formal complaint on November 24, 2021. AF at 40-42. The notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, AF at 33-36. 2022001866 3 The November 18, 2021, email from the EEO Counselor sending Complainant the notice also clearly stated that her EEO complaint could be dismissed as untimely if it was not filed within 15 calendar days of receipt. AF at 40-42. To be considered timely, Complainant needed to file her complaint by December 9, 2021. Complainant did not file her formal complaint until January 10, 2022, which is beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant waiver, estoppel, or tolling of the time limit for filing the complaint. Complainant stated she was waiting for assistance from the union before filing her EEO complaint and contends that an extension of 10 business days on appeal was insufficient time to retain counsel. However, Complainant is responsible for proceeding with the complaint at all times, whether or not she has a representative. 29 C.F.R. § 1614.605(e). Complainant also stated that she was “very ill” with covid-19 during the 15-day time frame for filing her complaint and in bed for almost three weeks. AF at 50. Complainant provided a December 15, 2021, laboratory report showing that a sample collected from Complainant on December 13, 2021, was positive for covid-19. AF at 51. 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, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Pan v. U.S. Postal Serv., EEOC Appeal No. 0120131360 (June 25, 2013); Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (March 8, 1989). There is nothing in the record reflecting an incapacity during the applicable period to prevent the timely filing of a complaint. Moreover, Complainant stated that, after her illness, she “was able to get back up and running” around December 23, 2021. AF at 50. As noted by the Agency, even assuming arguendo that Complainant was incapacitated during the filing period, 15 calendar days from December 23, 2021, was January 7, 2022, and Complainant did not file her EEO complaint until January 10, 2022. Therefore, Complainant has not offered adequate justification for an extension of the applicable time limit for filing an EEO complaint. 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. 2022001866 4 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. 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. 2022001866 5 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 27, 2022 Date