By Deryn Sumner, October 24, 2017

As we discussed in August’s edition of the FELTG newsletter, the EEOC’s Office of Federal Operations is cracking down on granting extensions on deadlines to file appeal briefs.  In one canned response my office received, the EEOC made reference to a need to show that the party was incapacitated during the regulatory timeframe to file the brief.  Incapacitation is used as the standard for other issues of timeliness, including in determining whether there is a basis to extend the timeframe for making contact with an EEO counselor or filing a formal complaint.  So what does one have to do to show incapacitation before the Commission?  As the case law tells us, merely being stuck on your couch binge-watching TV while you fight off the flu is not going to cut it.

Historically, the EEOC has required the party, typically the complainant, to provide medical documentation to demonstrate the inability to meet a deadline because of a medical condition and to show that the medical condition was so severe so as to prevent the complainant from meeting the deadline.  Being taken to the emergency room will typically be sufficient to show incapacitation, as was the case in Zandra N. v. United States Postal Service, EEOC Appeal No. 0120161756 (July 15, 2016).  Being in a residential treatment program is also typically sufficient to show incapacitation, as shown in Complainant v. Department of Agriculture, EEOC Appeal No. 0120133092 (January 17, 2014).

However, medical documentation alone will not always meet that burden of proof.  For example, in a 2015 case, Refugia v. Department of Homeland Security, EEOC Appeal No. 0120151970 (October 3, 2015), req. for recon. denied, EEOC Request No. 0520160076 (June 8, 2016), the complainant submitted a medical certificate in support of her claim that she was under severe stress during the timeframe she had to file a formal complaint of discrimination, which caused her not to be able to timely file the complaint.  The Commission found that although the complainant submitted medical documentation, she did not demonstrate that she was so incapacitated that she could not meet the deadline.

The Commission did recently credit submitted medical documentation in the case of Jutta A. v. Department of Veterans Affairs, EEOC Appeal No. 0120172048 (September 22, 2017) to excuse the untimely filing of a formal complaint.  There, the complainant received her notice of right to file a formal complaint on March 9, 2017, but did not file her formal complaint until March 28, 2017, 19 days after receiving it and 4 days after the deadline.  The Commission found persuasive that the complainant submitted medical documentation from two medical professionals noting that the complainant was experiencing “crippling anxiety associated with various physical symptoms” as well a respiratory tract infection developed during that time.  Given the short period of time that had elapsed between the deadline and the complainant’s submission, the Commission found fit to reinstate the formal complaint for processing.

So, if you plan on asserting that personal incapacitation kept you from meeting a deadline, be prepared to have the medical documentation to support your claim.

Sumner@FELTG.com

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