[Redacted], Antione H., 1 Complainant,v.Charlotte A. Burrows 2, Chair, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity Commission

Feb 25, 2022

Appeal No. 2022000053 (E.E.O.C. Feb. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Antione H.,1 Complainant, v. Charlotte A. Burrows2, Chair, Equal Employment Opportunity Commission, Agency. Appeal No. 2022000053 Agency No. 2021-0021 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated July 29, 2021, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Investigator, GS- 1810-12, at the Agency’s Miami District Office in Miami, Florida. On April 23, 2021, Complainant contacted the Agency’s Office of Equal Opportunity (OEO) to initiate EEO counseling. On June 22, 2021, an EEO Counselor issued Complainant a Notice of Right to File a Discrimination Complaint. On the following day, Complainant confirmed 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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term “Commission” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to the respondent party in this action. The Chair has abstained from participation in this matter. 2022000053 2 receipt of the Notice via email and his representative acknowledged receipt via a “read receipt” to the EEO Counselor. On July 15, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. Complainant has been subjected to harassment and retaliation since 2012; 2. A Miami District Office Supervisor (Supervisor) made “disparaging, sexually offensive remarks” regarding his complaint about one of Supervisor’s subordinates; 3. Supervisor failed to provide Complainant with a “reasonable opportunity to overcome years of sexual harassment, harassment, and retaliation,”; 4. Supervisor held Complainant to a higher standard than other similarly-situated Investigators; 5. Supervisor denied Complainant the opportunity to participate in the Field Program Specialist detail position with the Department of Health and Human Services (HHS); and 6. Supervisor recommended Complainant’s removal from federal service. On July 29, 2021, the Agency dismissed the complaint on the grounds that it was untimely filed, pursuant to 29 C.F.R. §1614.107(a)(2). The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106. EEOC Regulation 29 C.F.R. § 1614.106(b) requires complaints of discrimination to be filed within fifteen (15) calendar days of receipt of the Notice of Right to File a Discrimination Complaint. However, these time limits are subject to waiver, estoppel, and equitable tolling. 29 C.F.R. § 1614.604(c). Here, we find that the Agency properly dismissed Complainant’s formal complaint on the grounds that it was untimely filed. It is undisputed that Complainant and his attorney received the Notice of Right to File a Formal Complaint on June 22, 2021. Complainant confirmed receipt via email and his attorney acknowledged receipt via a “read receipt” sent to the EEO Counselor. Therefore, Complainant had 15 days, or until July 7, 2021, to timely file a formal complaint. Complainant waited until July 15, 2021 to file his complaint. 2022000053 3 On appeal, Complainant’s attorney asserts that, despite Complainant’s diligence, the complaint was not filed on time due to the attorney’s “inadvertent delay.” However, pursuant to 29 C.F.R. §1614.605(e), complainants are responsible for proceeding with the complaint whether or not the complainant has designated a representative. Moreover, an attorney’s failure to timely submit the complaint upon receipt of the Notice of Right to File is not justification for an extension of the time-limit absent a sufficient explanation. Herta A. v. U.S. Postal Serv., EEOC Appeal No. 2020003275 (Oct. 5, 2020) (affirming dismissal of complaint where complainant’s attorney failed to timely submit the formal complaint and argued that complainant should not be penalized for the attorney’s mistake); Fletcher E. v. Dep’t of the Army, EEOC Appeal No. 2021001962 (June 23, 2021)(affirming dismissal of complaint where complainant’s attorney asserted that the complaint must have been “stuck in an outbox or somewhere else in the system”); Daniell F. v. Dep’t of Veterans Affs., EEOC Appeal No. 2020003857 (Oct. 6, 2020) (finding that an extension of the applicable time limit was warranted due to the difficulties Complainant's attorney had with filing the formal complaint via email). We find that Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Accordingly, we AFFIRM the Agency’s final decision dismissing the formal complaint.3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 3 Because we are affirming the dismissal of the complaint for untimeliness, we decline to address the parties’ arguments regarding the timeliness of the instant appeal. 2022000053 4 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 2022000053 5 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: /s/ Shelley E. Kahn ______________________________ Shelley E. Kahn’s signature Shelley E. Kahn Acting Executive Officer Executive Secretariat February 25, 2022 __________________ Date