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EEOC Excuses Untimely Filing

In a recent EEOC decision, the Commission held that the time limit for filing a formal EEO complaint can be extended if the employee produces sufficient evidence to establish that he was unable to meet the time limit because of mental or physical incapacitation. See Butler v. United States Postal Service, EEOC Appeal No. 0120100055 (March 3, 2010). The employee was a postal police manager who alleged that he was discriminated against on the bases of his sex, race, disability and age when he was issued a negative evaluation. The employee initiated EEO contact on June 16, 2009, and on July 16, 2009, he received notice of his right to file a formal complaint. On August 7, 2009, the employee filed his formal complaint.

An employee is required to file a formal complaint within 15 days of receiving notice of the right to file a formal complaint. See 29 C.F.R. § 1614.107(a)(2). Therefore, the agency dismissed the employee's formal complaint as untimely after determining it was filed three days over the 15-day time limit.

On appeal, the EEOC reversed the agency's decision and reinstated the employee's formal complaint for an EEO investigation. The Commission has consistently held in cases involving physical or mental health difficulties that an extension is warranted where the individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. However, the medical evidence must establish incapacity, not merely that the employee suffered from a medical condition.

In another case, the EEOC had held that an employee's complaint was untimely when the employee missed the 15-day deadline to file her formal complaint because the statements from her physicians indicated she suffered from depression, but the documentation did not establish she was incapacitated such that she was unable to file her complaint for the almost six months she delayed. See Smith v. United States Postal Service, EEOC Appeal No. 01A55920 (February 6, 2006). Yet, in this case the Commission concluded that an extension of time was warranted because the employee's psychologist indicated that the employee was receiving treatment for major depression at the time he was required to file his complaint, and he was incapable of acting in a timely manner because of his lack of energy, focus and concentration. Consequently, the Commission found that the employee was incapacitated by major depression, and thus, excused the untimeliness of his formal complaining.

Passman & Kaplan, P.C., Attorneys at Law

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