[Redacted], Judi S., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2021002997 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Judi S.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Appeal No. 2021002997 Agency No. 63-2020-00627D DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 29, 2021, dismissing a formal complaint alleging 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. BACKGROUND During the period at issue, Complainant worked as a Recruiting Manager at the Agency’s St, Louis, Missouri Area Census Office in St. Louis, Missouri. On July 16, 2020, Complainant filed a formal complaint claiming that the Agency discriminated against and subjected her to harassment based on race, sex, and in reprisal for prior protected EEO activity. On March 29, 2021, the Agency issued the instant final decision. The Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. The Agency reasoned that Complainant received, by email, the Notice of Right to File a Formal Complainant (Notice) on June 29, 2020. The Agency found, however, that Complainant did not file her formal complaint until, July 16, 2020, which was two days beyond the 15-day filing period. 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. 2021002997 2 The instant appeal followed. On appeal, Complainant argues that she timely filed her formal complaint on July 16, 2020. Complainant explains that the Notice indicated that the fifteen- limitation period began five days from the June 29, 2020 mailing date, and that therefore, the limitation period did not begin until July 4, 2020, and Complainant had until July 19, 2020 to timely file. 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 notice of the right to do so. The Agency’s final decision, dismissing the formal complaint due to its untimely filing was proper. Documentation in the record supports that the Agency emailed Complainant the Notice on June 29, 2020, and Complainant read the email the same day. Because Complainant received the Notice on June 29, 2020, Complainant had fifteen days, or until July 14, 2020, to timely file the formal complaint. Therefore, Complainant untimely filed her formal complaint on July 16, 2020. We acknowledge Complainant’s argument on appeal. However, we do not find that this explanation warrants an extension of the limitation period. The Notice includes the following language in the body of the letter: For the purposes of timeliness, the Agency presumes that the Official notice of Right to File was received within five (5) calendar days of the date on which it was mailed and that the time frames should be computed as commencing five days from the date of the mailing. Complainant uses this language as the basis for her argument that the limitation period began five days after June 29, 2020. However, this language applies to Notices issued by mail. We note that the certificate of service indicates that the Notice was not issued by mail and was only issued electronically to Complainant’s email on June 29, 2020. Consequently, we do not find that language in the Notice informing Complainant that she had fifteen days to from receipt of the Notice to file her formal complaint conflicts with language in the Notice regarding determinations for when mailed Notices are considered received. Complainant does not dispute that she received the Notice electronically on June 29, 2020. Therefore, Complainant had fifteen days from June 29, 2020 to timely file the formal complaint but failed to do so. The Agency’s final decision to dismiss the formal complaint on the grounds of untimely filing is AFFIRMED. 2021002997 3 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. 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). 2021002997 4 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 July 28, 2021 Date