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

Equal Employment Opportunity Commission

Oct 19, 2021

Appeal No. 2021001795 (E.E.O.C. Oct. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ken E.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021001795 Agency No. ARTACOM19JAN00135 DISMISSAL OF APPEAL Complainant filed a January 21, 2021, appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated December 8, 2020, concerning his EEO complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. On January 3, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of disability when: on March 26, 2018, he was denied an accommodation by the EEO Manager and his Supervisor.2 Following an investigation, Complainant was informed of his right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final Agency decision (FAD). Complainant requested that the Agency issue a FAD. In its FAD, the Agency concluded that Complainant did not establish that he was a denied a reasonable accommodation or subjected to discrimination as alleged. We note that an appeal to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency's final decision, pursuant to 29 C.F.R. § 1614.402(a). Here, our review of the FAD reveals that the Agency properly advised Complainant of the thirty- day time limit for filing an appeal. 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 In EEOC Appeal No. 2019002561, the Commission reversed the Agency’s dismissal of the complaint for untimely EEO Counselor contact and remanded the matter for further processing. 2021001795 2 The December 8, 2020 FAD included a Certificates of Service, which certified that the FAD was sent to Complainant’s home address as well as his work and personal email addresses. On appeal, in his EEOC Form 573, Complainant acknowledges that he received the FAD but fails to indicate the date of receipt. As such, he is presumed to have received the FAD within five days from mailing, by December 13, 2020. See Chuck B. v. Dep’t of Veteran’s Affairs, EEOC Appeal Nos. 2020001453 & 2021004962 (Sept. 15, 2021) (as complainant did not indicate when he received the FADs, he was presumed to have received both FADs five days from mailing). Complainant, however, waited more than thirty days after December 13, 2020 to file his appeal on January 21, 2021. He has not offered adequate justification for an extension of the applicable time limit for filing his appeal. Accordingly, Complainant's January 21, 2021 appeal is untimely and 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. 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. 2021001795 3 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. 2021001795 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 October 19, 2021 Date