[Redacted], Bula P., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 4, 2022

Appeal No. 2021003971 (E.E.O.C. Oct. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bula P.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021003971 Hearing No. 480-2016-00218X Agency No. DON 15-32253-01052 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final action dated August 17, 2020,2 regarding her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Fabric Worker at the Agency’s Pearl Harbor Naval Shipyard and Intermediate Maintenance Facility in Joint Base Pearl Harbor-Hickman, Hawaii. On May 15, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the bases of sex (female), disability (pregnancy), and in reprisal for prior protected EEO activity. 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 EEOC regulations state that an Administrative Judge’s (AJ’s) decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. 1614.110(i). The AJ issued the summary decision on July 8, 2020, and the Agency did not issue a final order; as such, the AJ’s decision became the Agency’s final action on August 17, 2020. 2021003971 2 Examples of the alleged harassment include when Complainant was sent for a radiation qualifications physical, she was cautioned about her leave balance, and she was not informed of the results of her report of a hostile work environment. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency did not issue a final order and, by operation of law, the AJ’s decision became the Agency’s final action on August 17, 2020. Complainant’s appeal followed on July 2, 2021. ANALYSIS AND FINDINGS 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. The Commission’s regulations also provide that, if the Agency does not issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision becomes the Agency’s final action. 29 C.F.R. § 1614.109(i). While the Commission has held that there is no regulatory provision that sets a specific time limitation for filing an appeal in circumstances wherein an AJ’s decision becomes final by operation of 29 C.F.R. § 1614.109(i), the time for Complainant to file an appeal in this instance is governed by the doctrine of laches, “an equitable remedy under which an individual’s failure to diligently pursue their actions can bar their claims.” Avery S. v. Dep’t of the Treasury, EEOC Request No. 2020000221 (Jan. 22, 2020) (quoting O’Dell v. Dep’t of Health & Human Servs., EEOC Request No. 05901130 (Dec. 27, 1990). Here, Complainant filed her appeal approximately one year after the Agency’s final action, and we find that Complainant’s appeal is untimely under the doctrine of laches. See Cathie K. v. Soc. Sec. Admin., EEOC Appeal No. 2020000209 (April 27, 2021) (doctrine of laches was applicable when the complainant did not act with due diligence in filing her appeal until almost one year after receiving the AJ’s decision); Bill A. v. Dep’t of Trans., EEOC Appeal No. 2019002157 (July 21, 2020) (appeal dismissed as untimely where complainant waited eleven months to file appeal where agency did not issue a final order). CONCLUSION Accordingly, Complainant’s appeal is dismissed as untimely. 2021003971 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). 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). 2021003971 4 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. 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 October 4, 2022 Date