[Redacted], Adah P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 10, 2021

Appeal No. 2020001460 (E.E.O.C. Nov. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adah P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021003991 Appeal No. 2020001460 Hearing No. 560-2018-00237X Agency No. 200J-0657-2017102073 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001460 (June 3, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). This matter initially came before the Commission when Complainant appealed the Agency's final order, which determined that the Agency had not subjected Complainant to discriminatory harassment. Rather than consider the merits of Complainant's claim, the Commission dismissed this case on the ground that the appeal was untimely filed. 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. 2021003991 2 Our decision noted that Complainant stated that she received the Agency’s final decision on June 17, 2019, and the record shows that she had been informed that any appeal must be filed within 30 days of her receipt of the Agency's final order. However, Commission records indicated that she filed her appeal beyond that date. In her request for reconsideration of the dismissal of her appeal, Complainant argues that her appeal was not untimely filed. Specifically, she asserts that she timely filed her appeal on July 17, 2019, by USPS mail, but USPS returned her package and she subsequently had to resubmit her appeal. Complainant asserts that the mail was returned due to no fault of her own and submits USPS tracking records in support of her argument. However, as noted in our initial decision, the appeal envelope for the initially filed appeal was postmarked July 23, 2019, not July 17 as asserted by Complainant, and beyond the 30-day regulatory timeframe. According to EEOC regulations providing that timeliness is determined by the date of receipt or postmark, the appeal was untimely. See 29 C.F.R. § 1614.604. The USPS tracking records now submitted by Complainant show that her appeal was in the USPS mail system on July 18, 2019, and confirm that this piece of mail was not delivered and was returned to sender. We note that there is a discrepancy between the appeal envelope postmark of July 23, 2019, and the USPS tracking records. The USPS tracking records suggest that the postmark may be unreliable. However, even using the USPS tracking records as evidence of submission, the earliest date that the USPS tracking records show that Complainant’s appeal was in the USPS system is July 18, 2019, which is still one day beyond the 30-day time limit to submit her appeal. Therefore, Complainant has not established that our decision in EEOC Appeal No. 2020001460 involved a clearly erroneous interpretation of material fact or law. We remind Complainant that a “request for reconsideration is not a second appeal to the Commission.” Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020001460 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2021003991 3 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 November 10, 2021 Date