U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beryl B,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 0120181999 Agency No. 63-2018-00073 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 17, 2018, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Field Representative, GS-5, at the Agency's Los Angeles Regional Office facility in Los Angeles, California. On April 2, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Filipino American, Spanish), disability (reasonable accommodation request), and reprisal for prior protected EEO activity. On April 17, 2018, the Agency issued a final decision. The Agency dismissed the formal complaint on the ground that it was untimely filed pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that Complainant received the Notice of Right to File a Formal Complaint (Notice) on March 13, 2018 by certified mail. The Agency found, however, that Complainant did not file her formal complaint until April 2, 2018, which was beyond the 15-day filing period. The instant appeal followed. On appeal, Complainant argues that her time was "spread thin" during March 2018 because of health issues, numerous follow-up medical appointments, work responsibilities, and other prior EEO commitments that had to be met. Complainant explains that she had seven medical appointments in March 2018, two of which were scheduled the day of and day after the March 28, 2018 filing deadline. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's complaint for failure to timely file. 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's dismissal, due to the untimely filing of the formal complaint, was proper. Complainant acknowledged that her formal complaint was filed untimely. Specifically, Complainant explained that she untimely filed her complaint due to health issues and physician visits. 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, Complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, Complainant states that her doctor "recommends continued rest to aid in [her] recovery" status post a September 2017 hospitalization for "acute medical illness." However, there is nothing in the record, such as medical documentation, supporting that Complainant was so incapacitated during the applicable fifteen-day period as to prevent her from timely filing the instant complaint. We note, moreover, that Complainant states other reasons for the delay other than her physical condition, i.e., work deadlines and other EEO obligations. We find that none of these reasons justify a delay in timely filing a formal complaint. As the record establishes Notice was received on March 13, 2018, Complainant's formal complaint, filed on April 2, 2018, 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 (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 (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 August 17, 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 0120181999 4 0120181999 5 0120181999