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

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2021000680 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hattie K.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2021000680 Agency No. ARUSASAC20JUN01893 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated September 10, 2020, 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., 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Supply Technician at the Agency’s USASAC facility in New Cumberland, Pennsylvania. Believing that she was subjected to discriminatory harassment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns were unsuccessful, and she was issued a Notice of Right to File a Formal Complaint of Discrimination (hereinafter “Notice”). 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. 2021000680 2 On September 2, 2020, Complainant filed a formal complaint alleging that the Agency created a hostile work environment2 based on her race (Caucasian), sex (female), color (White), disability (physical), age (y.o.b 1957), and reprisal for prior protected EEO activity. On September 10, 2020, the Agency issued a decision dismissing the formal complaint on the grounds that the formal complaint was untimely filed. The Agency reasoned that Complainant received the Notice on August 17, 2020, but did not file her complaint until September 2, 2020, one day beyond the fifteen-day time limit. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. Here, Complainant does not dispute that she received the Notice on August 17, 2020.3 According to the Agency’s decision, Complainant contended that because she lacked a computer and Internet access, she obtained approval to access the work facility on September 1, 2020. Because, however, Complainant needed IT assistance, which was purportedly only available on Tuesdays and Wednesdays, she changed the date she went to the facility to September 2, 2020. The Agency correctly, noted that September 1, 2020, was a Tuesday. In failing to extend or toll the time limit, the Agency noted that August 18, 19, 25, and 26 were Tuesdays and Wednesdays that followed Complainant’s receipt of the Notice and would have allowed her to address IT issues and timely file her complaint. On appeal, Complainant states, “[f]irst, I would like to extend my apologies for the original incorrect explanation provided.” She proceeds to explain that “I had authorization to enter the command on September 1, 2020. On September 2, 2020, per [supervisor], I was instructed to come in to the office to receive a Wifi and training from IT.” So, Complainant went to the facility on September 2, 2020. We do not find that Complainant has provided adequate reason for her untimely filing. The Notice clearly informed her of the fifteen-day time limit. 2 The claim was supported by fourteen events, (a) through (n). 3 The record contains a copy of a Domestic Return Receipt, with Complainant’s address of record. While the receipt was signed by “JWD Letter Carrier”, the Agency decision explained that due to COVID-19 the United States Postal Service is not permitting recipients to sign certified mail delivery receipts. On her formal complaint form, Complaint identified August 17, 2020 as the date she received the Notice. 2021000680 3 Further, it provided her with multiple addresses to send a formal complaint through regular mail. Additionally, as observed by the Agency, the initial reasons proffered by Complainant seem disingenuous. CONCLUSION Therefore, the Agency’s decision to dismiss the formal complaint for the reason discussed above was proper and is AFFIRMED. 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. 2021000680 4 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. 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 2, 2021 Date