[Redacted], Deidra D., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Apr 29, 2021

Appeal No. 2020003373 (E.E.O.C. Apr. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deidra D.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003373 Agency No. 2016-26696-FAA-05 DISMISSAL OF APPEAL By Notice of Appeal postmarked May 11, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the March 3, 2017 final Agency decision (FAD) 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. 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. Complainant asserts that she never received the 2017 FAD. Specifically, she asserted that, “at the time the FAD was issued and sent via certified mail to [her] home address, [she] was unable to receive the letter due to a very busy schedule of medical appointments…By the time [she] was able and attempted to retrieve the certified letter the U.S. Postal Service had already returned the letter to sender.” The Commission has consistently held that a complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply. Cher B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120170087 (Feb. 8, 2017). When a Complainant waits three years to file their appeal of a FAD, without justification, the doctrine of laches bars the appeal. Id. (dismissing a complainant’s appeal pursuant to 29 CFR 1614.403(c) because complainant failed 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. 2020003373 2 to provide justification for extending or tolling the time limit, and she waited more than three years to file her appeal). See also Mitchum v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120111612, 2011 WL 6229162 (Nov. 30, 2011) (dismissing complainant’s appeal when complainant waited three years after the FAD to file his appeal despite complainant claiming that he never received the FAD). The documentary record shows that on March 3, 2017, the Agency sent its FAD to Complainant, and on May 11, 2020 (i.e., three years and two months later), Complainant filed her appeal with the Commission. Complainant admits that she knew she had something mailed to her in 2017 but asserts that she never picked it up from the United States Postal Service (USPS). The documentary record shows that the FAD was sent to Complainant via FedEx which contradicts her allegation that the FAD was awaiting her pick up at the USPS. However, assuming the FAD was at a FedEx office waiting for her to pick it up, Complainant’s contention that she could not retrieve her mail due to her medical appointments is not credible. The record shows that Complainant continued to show up for work, despite her 2017 medical appointments. The record is devoid of evidence supporting the contention that Complainant was incapacitated and could not go retrieve her mail. Without justification, Complainant waited three years to file an appeal from a FAD, which establishes that Complainant failed to diligently pursue her appeal. On appeal, Complainant fails to submit adequate justification to invoke waiver or equitable tolling. CONCLUSION Accordingly, Complainant's May 11, 2020 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. 2020003373 3 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. 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. 2020003373 4 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 April 29, 2021 Date