[Redacted], Elsa A., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2020004445 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elsa A.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020004445 Hearing No. 430-2015-00354X Agency No. ARBRAGG15JAN00128 DISMISSAL On August 5, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision dated February 14, 2018, dismissing 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant worked as an Educational Aide at the Cook Child Development Center at the Agency facility in Fort Bragg, North Carolina (Fort Bragg). Effective September 7, 2014, the Agency removed Complainant from employment, citing “Failure to observe written regulations, orders, rules or procedures.” On February 3, 2015, with subsequent amendments, Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), age (55), and reprisal for prior protected EEO activity (2013 EEO complaint) when it removed her from Agency employment on September 7, 2014. Following an EEO investigation conducted by the Agency and then a hearing before an EEOC Administrative Judge (AJ), on January 31, 2018, the assigned AJ issued an Order Entering Judgment in favor of the Agency. The AJ found that Complainant failed to prove that the Agency 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. 2020004445 2 removed her from employment based on discriminatory motives. On February 14, 2018, the Agency issued a final decision implementing the AJ’s finding of no discrimination. Complainant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120181331. On June 21, 2018, for Appeal No. 0120181331, EEOC affirmed the Agency’s final order adopting the AJ’s order. On August 5, 2020, Complainant filed the instant appeal alleging Fort Bragg management consistently abused its authority regarding disciplinary actions of people of color, including Complainant’s removal. Complainant alleged that the Agency improperly handled her prior EEO complaint and she wants an impartial investigation. In opposition, the Agency requested dismissal of this appeal, stating that Complainant was either trying to file an untimely request for reconsideration or an improper second appeal of Agency No. ARBRAGG15JAN00128 Upon review, we agree with the Agency and find that Complainant's appeal must be dismissed. To the extent that Complainant is attempting to appeal the February 14, 2018 final agency decision for Agency No. ARBRAGG15JAN00128, her August 5, 2020 appeal would be untimely and that matter was already considered in Elsa A. v. Dep’t of the Army, EEOC Appeal No. 0120181331 (June 21, 2018). In said decision, EEOC informed Complainant of the right to request reconsideration within 30 calendar days of receipt of 0120181331, which Complainant did not do. Hence, even if we viewed the instant correspondence as a request for reconsideration, it would also be untimely. Accordingly, we dismiss the instant appeal. 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). 2020004445 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. 2020004445 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 January 14, 2021 Date