[Redacted], Elizabeth T., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2021002687 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elizabeth T.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002687 Hearing Nos. 520-2016-00289X 520-2016-00416X Agency Nos. NY-15-0402-SSA NY-15-0725-SSA DISMISSAL OF APPEAL On April 6, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as Claims Representative, GS-11, at the Agency’s Union Township District Office. On June 8, 2015, Complainant filed a formal complaint (Agency No. NY-15-042-SSA) alleging that she was subjected to discrimination based on age (over 40) and disability (disabled spouse) when: 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. 2021002687 2 1. On February 13, 2015, Complainant became aware that she was not selected for Social Insurance Specialist (“Technical Expert”) position advertised under Vacancy Announcement SN-1273849-15-ROII-061. 2. On March 9, 2015, Complainant became aware that she was not selected for an announced, temporary 120-day detail. On August 12, 2015, Complainant filed another complaint Agency No. NY-15-0725-SSA alleging she was subjected to non-sexual harassment in retaliation for her prior EEO complaint between March 11 - June 29, 2015. Following an investigation on her complaints, Complainant requested a hearing on both complaints before an EEOC Administrative Judge (AJ). On July 20, 2018, the AJ assigned to the case issued a consolidated decision without a hearing finding no discrimination. The AJ’s decision was sent to the parties via email. The AJ’s decision contained a certificate of service stating it shall be presumed the parties received the decision immediately upon email delivery. The Agency did not issue a final order. The AJ’s decision explicitly informed Complainant of her right to file an appeal with the Commission after the conclusion of the Agency’s 40-day period for issuing a final order if the Agency failed to issue a final order. Complainant filed her appeal on April 6, 2021. 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 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 decision. 29 C.F.R. § 1614.109(i). Furthermore, EEOC's Management Directive 110 (August 5, 2015), Chapter 9, Section II.A.1.c, specifically states that Complainant's 30-day period for filing an appeal of the Agency's final order “begins” at the conclusion of the Agency’s 40-day review period. The Commission has held there is no regulatory provision that sets a specific time limitation for filing an appeal in circumstances such as this wherein an AJ’s decision becomes final by operation of 29 C.F.R. § 1614.109(i). Avery S. v. Dep’t of the Treasury, EEOC Request No. 2020000221 (Jan. 22, 2020). Rather, 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., EEOC Request No. 2020000221 (quoting O’Dell v. Dep’t of Health and Human Serv. EEOC Appeal No. 05901130 (Dec. 27, 1990)). Here, Complainant waited over two and one half years before she filed her appeal. The Commission has consistently held that a complainant must act with due diligence in the pursuit of her claim. Complainant v. United States Postal Serv., EEOC Request No. 0520090178 (June 19, 2009); In this case, we find that the doctrine of laches is applicable, and Complainant did not act with due diligence in filing her appeal until over three years after receiving the AJ’s decision. 2021002687 3 On appeal, Complainant fails to submit adequate justification to invoke waiver or equitable tolling for filing the appeal. Accordingly, the appeal is DISMISSED as untimely pursuant to 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). 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. 2021002687 4 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. 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 March 28, 2022 Date