U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daisy W.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021003140 Hearing No. 430-2020-00147X Agency No. TSA-01580-2019 DISMISSAL OF APPEAL On May 3, 2021 Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the January 13, 2021 final order concerning her EEO 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. On July 9, 2019, Complainant filed an EEO complaint alleging the Agency subjected her to harassment based on race (African American), color (brown), sex (female), and in reprisal for prior EEO activity when: 1. On May 30, 2018, Complainant was issued a five-day suspension. 2. In February 2019, management did not respond to Complainant’s report of alleged supervisory harassment. 3. On May 30, 2019, management conducted a fact-finding into Complainant’s performance. 4. In June 2019, management held Complainant to a higher standard of performance. 5. On June 7, 2019, management charged Complainant with discourteous conduct and conducted a pre-decision discussion. 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. 2021003140 2 6. On June 11, 2019, a manager removed Complainant’s fan while on duty. 7. On July 31, 2019, Complainant was suspended for 14 days. Following an investigation of her complaint, Complainant requested a hearing on the matter before an EEOC Administrative Judge (AJ). The AJ issued a decision on December 8, 2020, finding the Agency did not subject Complainant to unlawful discrimination. Thereafter, the Agency issued a notice of final order dated January 7, 2021, fully implementing the AJ’s decision. EEOC Regulation 29 C.F.R. §1614.402(a) provides that appeals to the Commission must be filed within 30 calendar days after receipt of the Agency’s decision. The record reveals the final order was sent to Complainant and her representative via email on January 13, 2021. The final order noted it would be presumed that the parties received the final order on the date indicated if sent via email or within five calendar days after the date indicated if sent by regular mail. A review of the notice of final order reveals that the Agency properly advised Complainant that she had 30 calendar days after receipt of its final order to file her appeal with the Commission. On appeal, Complainant acknowledges receipt of the final order on January 26, 2021. Even assuming Complainant did not receive the Agency’s final order until January 26, 2021, we find she failed to timely file her appeal with the Commission. Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal. CONCLUSION Accordingly, Complainant's May 3, 2021 appeal is untimely and is 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). 2021003140 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. 2021003140 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 June 15, 2021 Date
