Avery S.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jul 30, 2019

0120180734 (E.E.O.C. Jul. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Avery S.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120180734

Agency No. IRS-14-0557-F

DISMISSAL OF APPEAL

By Notice of Appeal postmarked December 22, 2017, Complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) concerning his EEO complaint of
unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

Complainant worked as a Physical Security Specialist, GS-0800-11, at the Agency’s Area Wide
Shared Services facility in Washington, D.C. On August 12, 2014 (and later amended),
Complainant filed an EEO complaint alleging that the Agency discriminated against him and
subjected him to a hostile work environment on the bases of disability and in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, management
unsuccessfully attempted to revoke his selection for a Physical Security Specialist position after
he submitted disability paperwork and reassigned him to a clerical position that was designed to
remove him from customer contact; he never received the proper training for the position he was
hired and instead assigned administrative tasks; he was removed from the unit following an
altercation with a co-worker for which he was not at fault; he was not allowed to participate in the
Presidential Management Fellows Program or join the Agency’s Language Services Executive
Council; he was not funded for several training programs or certifications; he was not promoted;
he was the only employee required to wear a suit; his telework agreement was revoked; he was
reassigned; he learned that his co-workers were instructed to not allow him to interact with

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.
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customers; he received a failed rating of 1.8 on his annual performance appraisal; and his
Performance Management Fellow appointment was terminated.

At the conclusion of the investigation into his complaint, the Agency provided Complainant with
a copy of the report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case
granted the Agency’s August 22, 2016 motion and issued a summary judgment decision on August
11, 2017, finding that Complainant had not been subjected to discrimination or reprisal. The
Agency subsequently issued a final order adopting the AJ’s decision.

CONTENTIONS ON APPEAL

In his initial December 22, 2017 appeal, Complainant stated that the Agency had not timely issued
a final order. In his subsequent appeal brief, Complainant argued that the AJ’s summary judgment
decision should be reversed as the evidence established that he was subjected to discrimination
and reprisal.

The Agency argued that Complainant’s appeal was untimely. In support, the Agency noted that
the AJ’s decision was issued on August 11, 2017, and that the Agency issued its final order
adopting the AJ’s decision on August 29, 2017. Complainant did not file his appeal until
December 22, 2017, was well beyond the 30-day filing period prescribed by EEO regulations.
Even if Complainant did not receive the Agency’s final order, the AJ’s decision would become the
Agency’s final decision after 40 days. Because Complainant did not file his appeal until December
22, 2017 – well beyond the regulatory time frame – the Agency argued that this appeal was filed
untimely.

In response, Complainant provided the Commission email exchanges between his attorney and
Agency representatives in which the Agency representatives could not produce documentation
showing that the Agency did, in fact, transmit its final decision to Complainant or his attorney.
Complainant did not, however, address the Agency’s second argument as to the timelines of his
appeal relative to the AJ’s decision.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.109(i) provides that if an agency does not issue a final order
within 40 days of receipt of the AJ's decision in accordance with 29 C.F.R. § 1614.110, the decision
of the AJ shall become the final action of the Agency. Appeals to the Commission must be filed
within 30 days of “receipt of the dismissal, final action or decision.” 29 C.F.R § 1614.402(a).

In her August 11, 2017 decision, the AJ provided notice that our regulations require the Agency
to take final action on the complaint by issuing a final order within 40 calendar days of receipt of
an AJ's decision and order. The AJ's decision also provided notice that Complainant may not
directly appeal to the Commission from his decision unless the Agency failed to issue its final
decision within 40 calendar days of its receipt of the AJ's decision.
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The Certificate of Service in the Order notes that for timeliness purposes, receipt of the Order and
Decision would be presumed as received within five calendar days after they were sent by first
class mail. The AJ’s Order and Decision is therefore presumed to have been received by both the
Agency and Complainant on August 16, 2017.

The 40-day time period therefore started on August 16, 2017. The Agency had 40 days to issue a
decision in accordance with 29 C.F.R. § 1614.110, i.e., by September 25, 2017. Because the
Agency did not issue a decision by September 25, 2017, the AJ’s decision became the decision of
the Agency by operation of law, pursuant to 29 C.F.R. § 1614.109(i).

The expiration of the 40-day time frame without a final agency decision triggered the 30-day time-
period for an appeal to be filed. Ela O. v Nat’l Sec. Agency, EEOC Appeal No. 0720130021 (Oct.
30, 2015) (AJ’s finding of discrimination became agency's final decision by operation of law where
agency failed to take action during the 40-day period); Complainant v. Dep't of State, EEOC
Appeal No. 0120141065 (May 15, 2014) (complainant’s appeal untimely where AJ's decision
became agency's decision by operation of law).

Accordingly, pursuant to 29 C.F.R. § 1614.402(a), Complainant had to file his appeal by October
25, 2017. Complainant's appeal was not postmarked until December 22, 2017. Complainant's
appeal was therefore untimely.

CONCLUSION

Accordingly, Complainant's December 22, 2017 appeal is hereby DISMISSED. See 29 C.F.R. §
1614.403(c).
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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.
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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

July 30, 2019
Date