[Redacted], Beatrice B., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 23, 2022

Appeal No. 2021002918 (E.E.O.C. Mar. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatrice B.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002918 Hearing No. 420201900412X Agency No. ATL180891SSA DISMISSAL OF APPEAL On April 21, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency’s December 19, 2019 Final Order 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. Specifically, the Final Order adopted the AJ’s December 6, 2019 Summary Judgment Decision finding that Complainant failed to establish discrimination as alleged. Appeals to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency's final action. 29 C.F.R. § 1614.402(a). EEOC regulations provide that if Complainant is represented by an attorney of record, the 30-day time period shall be calculated from the receipt of the required document by the attorney. In all other instances, the time within which to appeal shall be calculated from the receipt of the required document by Complainant. 29 C.F.R. § 1614.402(b). Complainant is responsible for proceeding with the complaint at all times, whether or not they designated a representative. 29 C.F.R. §1614.605(e). After Complainant filed the instant appeal, the Agency submitted a response asserting that the appeal was untimely. 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. 2021002918 2 As evidence, the Agency provides a December 19, 2019 email from Agency Counsel to Complainant’s email address of record, referencing its Final Order and the AJ’s Decision as attachments. While the Agency’s Final Order properly included instructions on Complainant’s appeal rights, including the 30-day time limit to file, the email alone is does not meet the Agency’s evidentiary burden because the body of the proffered email does not reference Complainant’s appeal rights or the 30-day time limit, so establishing actual receipt in this case would also require confirmation that Complainant received and was able to open the attachments. However, we deem December 19, 2019, as the date Complainant received the Agency’s final order by opening the attached documents to the Agency’s email. Complainant has not submitted a response contesting the Agency’s assertion that she received its Final Order and appeal rights on December 19, 2019, nor has she identified an alternative date on which she received these documents. Moreover, Complainant has not acknowledged or explained why she did not file her appeal for over a year, i.e., any persuasive arguments or documentation indicating that she was prevented from filing an appeal. See Mario K. v. EEOC, EEOC Appeal No. 2021001671 (Aug. 12, 2021) (adopting the agency’s proffered date complainant received its final order at the complainant’s email address of record when complainant did not contest the date or provide an explanation for the delay in filing). Therefore, Complainant’s appeal, filed over 30 days after the Agency issued its Final Decision, is untimely, and will not be accepted by the Commission. CONCLUSION Accordingly, Complainant's April 21, 2021 appeal is hereby DISMISSED. See 29 C.F.R. § 1614.403(c). 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). 2021002918 3 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 court has the sole discretion to grant or deny these types of requests. 2021002918 4 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 March 23, 2022 Date