Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120150777 Agency No. 200P-0605-2014103065 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 26, 2014, dismissing a formal 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 During the period at issue, Complainant worked as a License Vocational Nurse, GS-6 at an Agency facility in Loma Linda, California. On August 29, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability and in reprisal for prior protected activity. On November 25, 2014, the Agency accepted the complaint for investigation. On November 26, 2014, the Agency issued the instant final decision. Therein, the Agency rescinded the Notice of Acceptance and dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that it was not timely filed. Specifically, the Agency found that Complainant received the Notice of Right to File a Formal Complaint on August 13, 2014, informing her that she had fifteen days from the date of receipt in which to timely file a formal complaint. The Agency found, however, that Complainant filed the formal complaint on August 29, 2014, or one day after the expiration of the fifteen-day limitation period. On appeal, Complainant acknowledges that she was indeed one day late in filing her formal complaint. Complainant asserts, however, that because "she was out of work at this time with a mental breakdown and I couldn't function at all as evidence by FMLA [Family Medical Leave Act] paper work attached. I could not handle life and suffered from severe anxiety and depression and trouble concentrating let alone having to write this long claim out back then. This case caused my break down and the treatment I received from my Assistant Manager and the Higher ups without any one to for help... I was struggling with suicidal ideations as stated in my doctor's report on my FMLA paper attached." Complainant submits various documents identified as Certificates of Health Care Provide for Employee's Serious Health Condition (Family Medical Leave Act). Therein, a physician indicated that within the fifteen-day limitation period, Complainant was incapacitated due to "panic and depression" and that she had experienced "debilitating abdominal pain." ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R.§ 614.106(b) states that a formal complaint must be filed within 15 days of receipt of the notice required by 29 C.F.R. § 1614.105 (d). Complainant admitted in her appeal to the Commission that she was one day late in filing her formal complaint after receipt of the Notice of Right to File a Complaint. She explained the reason for tardiness due her medical condition. Given the specific circumstances of this case, we find that Complainant has presented adequate justification for the one-day delay in filing the instant formal complaint. CONCLUSION Accordingly, the Agency's final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to resume processing of the instant formal complaint from the point where processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of the formal complaint. A copy of the agency letter of acknowledgement must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations April 29, 2015 __________________ Date 2 0120150777 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013