By Meghan Droste, January 11, 2021
Happy New Year, FELTG readers! Congratulations, we all made it — we survived and it’s no longer 2020. It’s a great feeling. And yet, I can’t help but acknowledge the clouds that still linger. We’ve started new calendars and have to adjust to writing a new date, but of course it’s not like everything magically got better or went back to normal (whatever that means) at the stroke of midnight. We may be starting to see a light at the end of the tunnel, but we’ve still got some work to do until we reach it.
I say all of that not to bring down whatever hopeful mood you may be in, or to take away from whatever you are focusing on to just get through this, but as a reminder that so many issues from last year are still here. One of the things that sadly did not disappear at 12:01 am is COVID-19. While it’s not the top story this week, it is still here and we’re going to be feeling and seeing the impacts of it for some time to come.
In the legal world we are just starting to see some changes in terms of new case law. It’s too soon to have definitive answers on many questions (Is COVID-19 a disabling condition? Is firing someone because they might be at greater risk of COVID-19 a form of disability discrimination?). However, we have at least one EEOC decision regarding the impact of the pandemic on the processing of federal sector complaints.
In Natalya B. v. U.S. Postal Service, EEOC App. No. 2020005270 (Nov. 30, 2020), the complainant filed a formal complaint of discrimination in March 2020. The Agency issued a Final Agency Decision in July 2020 dismissing the complaint for failure to cooperate. It found that the complainant failed to complete the affidavit sent to her by the investigator, even after warning that failure to return the packet could result in dismissal of her complaint.
In her appeal, the complainant outlined the impact of the pandemic on her ability to complete the affidavit. First, her children’s school and day care facility closed. Then her son’s father became ill with COVID-19, followed by his grandparents and aunt. The complainant also explained that she was nine months pregnant at the time all of this occurred. She assured the Commission that her personal circumstances had improved since the spring and that she would be able to participate in the processing of her complaint.
Although the Commission is generally strict when it comes to deadlines for complainants in the formal complaint stage, the Commission reversed the agency’s dismissal. It found that the deadlines for the processing of a formal complaint are “subject to waiver, estoppel and equitable tolling” and that it was appropriate to exercise its authority in this situation. Specifically, the Commission found it was appropriate to excuse the complainant’s failure to timely respond “given the unique impact that Covid-19 had on her family as well as her pregnancy.”
The Commission was clear in its decision that it reversed the agency’s dismissal based on the “unique facts” of the case. I don’t expect that everyone who points to COVID-19 or the pandemic as a reason for missing a deadline will get an automatic pass, but I won’t be surprised to see more decisions in the future giving some leniency due to the extraordinary nature of events from the past 10 months. Droste@FELTG.com