U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bonny R.,1 Complainant, v. Major General Thomas M. Carden, Jr., Agency Head, Department of Defense, Department of the National Guard Bureau, Georgia National Guard. Agency. Request No. 2022000672 Appeal No. 2021003059 Hearing No. 410-2021-00009X Agency No. None Assigned DISMISSAL OF REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021003059 (September 27, 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). Previously, Complainant filed an appeal with the Commission from the Agency’s final order dated March 24, 2021, concerning her claim 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. 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. 2022000672 2 In our prior decision, we determined Complainant received the Agency’s final order on March 25, 2021, but did not filed an appeal until April 28, 2021, which we found was beyond the applicable limitations period. Thus, we dismissed Complainant’s appeal as untimely filed. Thereafter, Complainant filed the instant request for reconsideration with the Commission. In her request, Complainant noted that she filed her appeal timely on April 25, 2021; however, it was uploaded into the EEOC Hearings Portal not the EEOC Appeals Portal. Upon review, the record reveals that Complainant did file her appeal in the Hearings Portal on April 25, 2021. We note that when we issued our previous decision, we were not aware that Complainant had filed her appeal via the Hearings Portal on April 25, 2021. As the April 25, 2021 filing was within the applicable limitations period, we find, under the specific circumstances of this case, that Complainant’s appeal was timely filed. Thus, we will now review Complainant’s appeal of the Agency’s March 24, 2021 final order. On October 14, 2020, Complainant filed a request for a hearing on the instant matter before an EEOC Administrative Judge (AJ). In a March 17, 2021 decision, the AJ found that Complainant had not received EEO counseling on the matter and did not file a formal complaint after the counseling period expired (as she was entitled to do). The AJ stated that the filing of a valid complaint and the expiration of the 180-day period allowed for investigations are prerequisites to the AJ’s assumption of jurisdiction. Thus, the AJ dismissed Complainant’s request for a hearing. Additionally, the AJ noted the Agency’s willingness to investigate the matter and stated that if Complainant wished to pursue the matter further, she should respond to the Agency’s offer of counseling. The Agency issued a final order on March 24, 2021. The Agency’s final order fully implemented the AJ’s decision. Complainant appealed the Agency’s final order to the Commission. Upon review, we find that there is no complaint for the Commission to adjudicate at this time. There is no indication Complainant filed an EEO complaint. Complainant is advised that if she wants to still pursue counseling on the matter she should contact an EEO Counselor at the Georgia National Guard. We make no determination in this decision as to whether such contact would be considered to be timely. Thus, we DISMISS Complainant’s appeal. 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 2022000672 3 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). 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. 2022000672 4 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 22, 2021 Date
