Cameron M.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Oct 3, 2018

0120181855 (E.E.O.C. Oct. 3, 2018)

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

Cameron M.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Appeal No. 0120181855

Agency No. HHSFDAORASW07216

DISMISSAL OF APPEAL

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission)
concerning his complaint of unlawful employment discrimination. At the time of events giving
rise to this complaint, Complainant was employed by the Agency as a Consumer Safety Officer in
the Office of Regulatory Affairs, Southwest Region. On July 21, 2016, Complainant filed a formal
complaint of discrimination, in which he alleged that his supervisors subjected him to a hostile
work environment because of his race (African-American) and sex (male). Following an
investigation, the Agency issued a final decision on March 30, 2018. The Agency found that it
did not discriminate against Complainant.

EEOC Regulation 29 C.F.R. § 1614.402 provides that appeals to the Commission must be filed
within 30 calendar days after a complainant receives notice of the Agency’s decision. A review of
the Agency decision reveals that the Agency properly advised Complainant that he had 30 calendar
days after receipt of its final decision to file his appeal with the Commission. The Agency provided
a certificate of service including a presumption that Complainant received the Agency decision
within five days of issuance. Thus, we presume Complainant received the Agency decision on
April 4, 2018. Complainant has not persuasively rebutted that presumption of receipt. Complainant
filed his appeal on May 11, 2018, which is beyond the 30-day time limit. Complainant has not
offered adequate justification for an extension of the applicable time limit for filing his untimely
appeal. Accordingly, the appeal is DISMISSED as untimely pursuant to 29 C.F.R. § 1614.403(c).

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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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

October 3, 2018
Date