0120172842
06-26-2018
Lynette B,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lynette B,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120172842
Hearing No. 471-2010-00005X
Agency No. CHI-09-0365-SSA
DISMISSAL OF APPEAL
By email dated August 14, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the October 26, 2010 final Agency decision (FAD) concerning her 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. We note that the record contains no copy of any Agency final action dated October 26, 2010.
EEOC Regulation 29 C.F.R. � 1614.109(f) states that if an Agency does not issue a final decision within 40 days of receipt of the AJ's decision, then the decision of the AJ shall become the final action of the Agency. Further, EEOC Regulation 29 C.F.R. � 1614.402(a) states that an appeal must be filed within 30 days of the date when the AJ's decision became the final action of the Agency.
The record indicated that the Equal Employment Opportunity Commission Administrative Judge (AJ) issued a decision following a hearing on October 1, 2010, finding no discrimination. The Agency indicated that it provided Complainant with a final action dated October 26, 2010. Upon review, we find that the record contains no copy of a Final Action dated October 26, 2010. A reasonable determination in view of the absence of any such October 26, 2010 final action supports a determination that the AJ's October 1, 2010 decision became the Agency's final action in November 2010. Complainant filed the appeal on August 14, 2017, relating to that AJ determination, which is nearly seven years beyond the timeframe for the appeal to be considered timely. The Commission has consistently held that a Complainant must act with due diligence in the pursuit of a claim or the doctrine of laches may apply, which is an equitable remedy under which an individual's failure to pursue diligently her course of action could bar her claims. See Kirk v. U.S. Postal Serv., EEOC Appeal No. 0120122190 (Aug. 31, 2012) (where Complainant asserted that he never received a final agency decision and waited five years after receiving the AJ's decision to file an appeal, the Commission applied the doctrine of laches and dismissed the appeal as untimely); Smith v. Dep't of Veterans Affairs, EEOC Appeal No. 0120101233 (July 8, 2010) (The Commission applied the doctrine of laches and dismissed an appeal as untimely where Complainant waited two years to file the appeal); Ardelia v. U.S. Postal Serv., EEOC Appeal No. 0120172649 (Nov. 22, 2017) (Commission applied the doctrine of latches in a case in which Complainant filed an appeal six years after receiving the AJ's decision finding no discrimination and the Agency failed to provide a copy of its final action).
Here, we find that Complainant did not act with due diligence in filing her appeal approximately seven years after receiving the AJ's decision. Complainant has not offered any justification for the long delay in filing this appeal. As a result, we dismiss the appeal as untimely.
Accordingly, Complainant's August 14, 2017 appeal is hereby dismissed. See 29 C.F.R. � 1614.403(c).
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.
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
June 26, 2018
__________________
Date
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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