U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120161138 Agency No. 2003-0323-2015104482 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 15, 2016, dismissing a formal complaint of 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Veterans Service Representative for the Agency at VARO Jackson, in Jackson, Mississippi. On July 21, 2015, Complainant contacted an EEO Counselor and alleged that she was subjected to harassment and a hostile work environment. Informal efforts to resolve the matter were unsuccessful. On October 14, 2015, the EEO Counselor issued the Notice of Right to File a Complaint (hereinafter referred to as "Notice"), indicating that a formal complaint be filed within fifteen calendar days of receipt of the Notice. On November 18, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and age. On January 15, 2016, the Agency issued a final decision. The Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds that it was untimely filed. The Agency determined that the November 18, 2015 formal complaint was filed more than fifteen days after it determined that Complainant had received the Notice on October 14, 2015. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth 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. Based on a thorough review of the record and consideration of the arguments on appeal, we determine that the Agency dismissal, due to the untimely filing of the formal complaint, was proper. In her formal complaint, Complainant acknowledged that her formal complaint was filed untimely. Specifically, Complainant stated "the reason for my untimely filing of VA Form 4939 is due to the fact that I have been under FMLA for a serious ill parent since September 01, 2015. On October 14, 2015, the form was sent... At that time my mother was recovering from surgery and in my car. I was not in a frame of mind to make serious, important decisions due to my emotional stress of caring for parent." 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 Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). There is nothing in the record, such as medical documentation, supporting Complainant's assertion that she was so incapacitated during the applicable fifteen day period as to prevent her from timely filing the instant complaint. As the record establishes that the Notice was received on October 14, 2015, Complainant's formal complaint, filed on November 18, 2015, was more than fifteen days after the limitation period set forth in the regulations. Complainant has not presented adequate justification for extending the limitation period beyond fifteen days. The Agency's final decision to dismiss the formal complaint on the grounds of untimely filing is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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. 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, 2016 __________________ Date 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 0120161138 2 0120161138