Nia G.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Apr 5, 2017

0120160873 (E.E.O.C. Apr. 5, 2017)

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

Nia G.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120160873
Hearing No. 550-2011-00447X
Agency No. BOP-2010-0871

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission from the Agency’s final decision dated
March 22, 2013, regarding her complaint of unlawful employment discrimination. In her
complaint, filed on November 19, 2010, Complainant alleged discrimination based on race,
sex, and in reprisal for prior EEO activity when on September 16, 2010, the Agency
terminated her employment during her probationary period. EEOC Regulation 29 C.F.R. §
1614.402 provides that appeals to the Commission must be filed within 30 calendar days after
complainants receive notice of the Agency’s decision.

Complainant indicates that she did not receive the Agency’s final decision until March 27,
2015.2 Our records indicate that Complainant, via the Agency, filed her appeal on June 23,
2015, which was beyond the 30-day time limit set by the regulations. We note that on June
23, 2015, the Agency indicated that it was submitting its response to Complainant’s appeal
which was filed with the Agency on May 29, 2015. It is noted that our office has no evidence
of Complainant’s May 29, 2015 filing of her appeal to the Commission, but even if she did,

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.
2 It is noted that on June 23, 2015, Complainant filed a civil action, Case No. 2:15-cv-01337-
TLN-KJN, with U.S. District Court for Eastern District of California, raising the same matters
at issue in the instant complaint. Upon her September 10, 2015 motion, the Court granted
Complainant’s motion to dismiss her civil action without prejudice on September 15, 2015.
0120160873

2
her filing of an appeal on May 29, 2015, would still be beyond the 30-day time limit set by the
regulations. The record reveals that the Agency’s decision explicitly informed Complainant of
the time limits on her right to appeal. Complainant did not submit any adequate justification to
invoke waiver or equitable tolling for filing the appeal. Accordingly, the appeal is
DISMISSED as untimely pursuant to 29 C.F.R. § 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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”
0120160873

3
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

April 5, 2017
Date