[Redacted], Dolly H., 1 Complainant,v.Carol Spahn, Acting Director, Peace Corps, Agency.

Equal Employment Opportunity Commission

Feb 17, 2022

Appeal No. 2021001205 (E.E.O.C. Feb. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dolly H.,1 Complainant, v. Carol Spahn, Acting Director, Peace Corps, Agency. Appeal No. 2021001205 Agency No. PC-20-05 DISMISSAL OF APPEAL By Notice of Appeal postmarked December 9, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the July 31, 2020 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. On March 11, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of her sex (female), race (African-American), color (brown), disability (association with an individual with a disability), and in reprisal for prior protected EEO activity when the Agency subjected her to a hostile work environment that culminated in her constructive discharge on February 14, 2020. The Agency issued its final decision on July 31, 2020, finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, the Agency properly advised Complainant that she had 30 calendar days after receipt of its final decision to file her appeal with the Commission. Further, the final decision provided Complainant with instructions on how to file her appeal with the Commission via the public portal, mail, or fax. 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. 2021001205 2 The record indicates that on August 12, 2020, within two weeks of the Agency’s final decision, Complainant filed an appeal of the Agency’s final decision with the Merit Systems Protection Board (MSPB) despite not being given the right to appeal to MSPB. In a decision on October 5, 2020, the MSPB issued a decision finding it lacked jurisdiction because Complainant, as a member of the Foreign Service and a probationary employee, lacked standing to appeal her termination/resignation. Complainant did not file her appeal with the Commission until December 9, 2020, more than four months later. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, or for other reasons considered sufficient by the agency or the Commission. However, as discussed above, the Agency’s final decision provided the proper instructions to file an appeal with the Commission. Despite those instructions, Complainant attempted to file an appeal with the MSPB. There is no evidence indicating that the Agency misled Complainant to file an appeal with the MSPB instead of with the Commission, thus tolling the time requirements. Moreover, Complainant has not offered any justification for an extension of the applicable time limit for filing her appeal. CONCLUSION Accordingly, Complainant's December 9, 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. 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). 2021001205 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. 2021001205 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 February 17, 2022 Date