[Redacted], Farah S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 30, 2021

Appeal No. 2021002871 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Farah S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002871 Agency No. 211211-02210 DISMISSAL OF APPEAL On April 17, 2021, Complainant, via the EEOC Public Portal, filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the January 8, 2018 final decision (FAD) decision of the Agency concerning her EEO complaint (identified as Agency No. 211211-02210) 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. She appears to be appealing an Agency’s final Grievance Decision dated January 31, 2018.2 A copy of the certified mail return receipt card reveals that the FAD for her EEO complaint was received at Complainant's address of record on January 17, 2018. A review of the FAD reveals that the Agency properly advised Complainant that she had thirty (30) calendar days after receipt of its final decision to file her appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file her appeal no later than February 16, 2018. However, she waited more than three years to file her appeal on April 17, 2021. 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. 2 Although the record shows Grievant invoked arbitration on February 27, 2018, Grievant indicated that the matter did not proceed to arbitration and the Union indicated the matter was closed. 2021002871 2 Upon review of the record, we find Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal of the FAD. The record also shows that the Agency issued it final Second Step Grievance Decision on January 31, 2018. 29 C.F.R. §1614.401(d) provides that a grievant may file an appeal from a final decision of the agency in its grievance procedure when the issue of employment discrimination was raised. Grievance appeals to the Commission must be filed within 30 days of receipt of the agency’s final decision. 29 C.F.R. §1614.402(a). As mentioned, Complainant (also the Grievant) did not file the instant appeal until April 17, 2021, which is over three years after the issuance of the Agency’s final grievance decision. Upon review of the record, we find she has not offered adequate justification for an extension of the applicable time limit for filing her appeal of the Agency’s Second Step Grievance Decision.3 We acknowledge that Complainant/Grievant is frustrated by the EEO and negotiated grievance processes. However, a complainant or grievant must act with due diligence in the pursuit of her claims or the doctrine of laches may apply. See O'Dell v. Dep't of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). Here, Complainant/Grievant waited over three years from the dates of the Agency’s EEO FAD and Second Step Grievance Decision. For the reasons above, we find her appeal of both is untimely. CONCLUSION Accordingly, Complainant's April 17, 2021 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. 3 To the extent that Complainant’s appeal is about her dissatisfaction with her union and arbitration proceedings, these are Fair Labor Standards Act issues that cannot be addressed as part of the EEO process. 2021002871 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. 2021002871 4 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 September 30, 2021 Date