[Redacted], Mario K., 1 Complainant,v.Charlotte A. Burrows, 2 Chair, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity Commission

Aug 12, 2021

Appeal No. 2021001671 (E.E.O.C. Aug. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Mario K.,1 Complainant, v. Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency. Appeal No. 2021001671 Agency No. 2019-0034 DISMISSAL OF APPEAL On October 7, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 29, 2019, dismissing his 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. For the following reasons, the Commission DISMISSES Complainant’s appeal as untimely. At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Opportunity Investigator at the Agency’s Field Office in Denver, Colorado. On June 2, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on his disability when: 1) from January 2015 to April 2019, Complainant’s position was not converted from Conditional to Career or Career-Conditional; and 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 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority issuing this decision. For the purposes of this decision, the term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to EEOC in its role as the respondent party. In all cases, the Commission in its adjudicatory capacity operates independently from those offices charged with in-house processing and resolution of discrimination complaints. The Chair has abstained from participation in this decision. 2021001671 2 2) on April 19, 2019, Complainant’s application was not referred for the OFP-19- 10464951-TMD Supervisory Equal Opportunity Investigator position. On July 29, 2019, the Agency issued Complainant a final Agency decision (FAD) by email. The Agency emailed the FAD with the Agency number as the subject line. In the body of the email, the Agency stated that attached was “correspondence from the Office of Equal Opportunity (OEO) regarding EEO complaint 2019-0034.” The attached FAD advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file his appeal with the Commission. On October 7, 2019, Complainant postmarked his appeal, which included the appeal form which he signed and dated on September 25, 2019. Complainant’s appeal did not indicate when he initially received the Agency’s FAD. Complainant does not address the delay in his appeal. In response to Complainant’s appeal, the Agency argues that Complainant’s appeal was time barred as he failed to file his appeal within thirty days of receipt of the Agency’s FAD. Here, the record demonstrates that the Agency issued the FAD on July 29, 2019, to Complainant’s email address of record. The FAD properly advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file his appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file his appeal no later than August 29, 2019. Complainant mailed his appeal on October 7, 2019, as evidenced by the postmark. We note that Complainant neither contests the date on which the Agency asserts that he was served with the FAD and his appeal rights, nor identifies an alternative date on which he received the FAD and appeal rights. Complainant has not proffered any explanation for the lapse of time in filing his appeal, i.e., any persuasive arguments or documentation as to why he was unable to meet the deadline for filing a timely formal complaint. Therefore, we find this filing to be outside the 30-day time frame. Accordingly, based on our review of the record, Complainant’s appeal is DISMISSED pursuant to 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 2021001671 3 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). 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 2021001671 4 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: /s/Rachel See ______________________________ Rachel See’s signature Rachel See Executive Officer Executive Secretariat August 12, 2021 __________________ Date