U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynne E,1 Complainant, v. Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency. Appeal No. 0120180424 Agency No. HUD-00112-2017 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 11, 2017, 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. BACKGROUND During the period at issue, Complainant worked as a Trial Attorney at the Agency's facility in New York, NY. On September 20, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, national origin (Hispanic, Puerto Rican), sex (female), and in reprisal for prior protected EEO activity. The Agency dismissed the formal complaint on the grounds her formal complaint was untimely filed. The Agency reasoned that Complainant received the Notice of Right to File on August 21, 2017, but Complainant did not file her formal complaint until September 20, 2017, outside of the applicable time period. The Agency further noted that Complainant asserts that the time limit should be tolled due to her health. The Agency stated, in its final decision, that while Complainant asserts that there was a medical note attached to her formal complaint, the note was not included with her formal complaint. Moreover, the Agency found that Complainant failed to present sufficient evidence to toll the time limit. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency's final decision dismissing her complaint. Complainant asserts that she was incapacitated due to a grave reaction to medication that she had been prescribed. Complainant submits an affidavit and physicians' notes in support of her appeal. Moreover, Complainant asserts that the instant complaint is related to a prior EEO complaint, Agency Case No. HUD-0035-2016, and that she has requested a hearing before an EEOC AJ on the prior complaint. In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. The Agency asserts that, on appeal, Complainant submits additional medical documentation dated November 8, 2017 and November 17, 2017. The Agency asserts that we should not consider the medical documentation submitted by Complainant after the Agency issued its final decision. The Agency states that Complainant should have submitted this medical documentation when she initially filed her formal complaint. ANALYSIS AND FINDINGS The Agency improperly dismissed Complainant's formal complaint. EEOC Regulation 29 C.F.R. § 1614. 106 (b) provides that a complaint must be filed within 15 days of receipt of the Notice required by § 1614.105(d). Section 1614.107 (a) (2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in § 1614.106. Complainant requests that we extend the applicable time limit because she had a severe adverse reaction to prescription medication. We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory requirements. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Complainant has presented persuasive arguments and evidence regarding her medical condition that warrant an extension of the time limit for filing her formal complaint. On appeal, Complainant submits an affidavit. Therein, Complainant asserts that she received the Notice of Right to File on August 21, 2017. She further states that "several days before the deadline for filing the formal complaint, I began to experience a grave reaction to medication that I had been prescribed. The reaction included dizziness, blurry vision, impaired balance, headaches...These symptoms also exacerbated my depression and anxiety from which I have been suffering...and I was rendered incapable of focusing on any task beyond tending to my immediate physical needs." Complainant, in a letter dated September 19, 2017, which accompanied her formal complaint, stated that she was out of the work due to her health from September 5-September 14, 2017. Complainant stated that she went to the doctor on September 15, 2017, and returned the office on September 18, 2017. Complainant stated that on September 18, 2017, she also contacted the EEO Specialist to request an extension to file her formal EEO complaint and the EEO Specialist stated she did not have the authority to do so but to submit it as soon as possible. The record reflects that Complainant filed her EEO complaint on September 20, 2017. In support of her appeal, Complainant submits a letter from one of her physician's dated November 17, 2017. Therein, the physician stated "[Complainant] is under my care...Beginning on or about September 1, 2017, [Complainant] experienced severe adverse events related to medication....These adverse medication-related effects severely exacerbated her symptoms of depression and anxiety rendering her unable to think clearly, concentrate, focus or complete tasks. The incapacitation persisted until [September] 16, 2017." We deny the Agency's request that we not consider Complainant's medical documentation submitted on appeal. See Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120132926, (March 6, 2014) (reversing Agency's dismissal for untimely EEO Counselor contact reasoning that evidence Complainant submitted on appeal regarding her medical condition warranted an extension of the applicable time limit). Complainant presented sufficient justification for extending the time limit. We REVERSE the Agency's final decision dismissing the formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.2 ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 January 12, 2018 __________________ 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 To the extent Complainant is alleging that the instant complaint is related to a prior EEO complaint for which she requested a hearing before an EEOC AJ, Complainant may request the AJ consolidate the instant complaint with the prior EEO complaint. 29 C.F.R. § 1614.606. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180424 5 0120180424