[Redacted], Mitchell H., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2021000837 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitchell H.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021000837 Agency No. 18-67100-01255 DISMISSAL OF APPEAL Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision, dated April 29, 2019, concerning his complaint of unlawful employment discrimination. At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment Mechanic Supervisor, WS-5803-05, Marine Depot Maintenance Command in Barstow, California. On May 25, 2018, Complainant filed his complaint alleging that: 1. He was discriminated against based on race, color, sex, age, and in reprisal for prior EEO activity when: a. On January 24, 2018, his first-line supervisor informed him that he was meeting too frequently in his office with an employee he was mentoring; and b. On January 31, 2018, he was notified by his third-line supervisor that he was not selected for the position of Supervisory Industrial Specialist (GS-1150-13), Job Announcement (JA) # ST-1008476-18-BMA. 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. 2021000837 2 2. He was discriminated against in reprisal when on July 3, 2018, his third-line supervisor denied his request to proceed with processing for the Department of Defense Expeditionary Civilian Program for a 12-month overseas detail. 3. He was discriminated against based on race, age, and in reprisal when on July 19, 2018, he became aware that he was not selected for the position of Supervisory Production Analysis Specialist (GS-12), JA #ST-10156670-19-MMS, when a younger, Hispanic male was selected. 4. He was discriminated against based on race, color, and in reprisal when on November 8, 2018, he became aware that he was not selected for the position of Trades Branch Head (GS-13), JA #ST-10297851018-MMS. EEOC Regulation 29 C.F.R. § 1614.402 provides that appeals to the Commission must be filed within 30 calendar days after complainants receive notice of the Agency’s decision. The record indicates that Complainant received the Agency’s decision, via mail, on May 7, 2019. The appeal was filed on November 13, 2020, which was beyond the 30-day time limit set by the regulations. The record reveals that the Agency’s decision explicitly informed Complainant of the time limits on his right to appeal. On appeal, Complainant indicates that he recently received the Agency’s decision electronically on November 10, 2020, due to his relocation from California to Texas and moving twice while living in Texas. Complainant does not indicate, and there is no evidence showing, that he provided notification of his new Texas address to the Agency prior to the issuance of the Agency’s decision. Furthermore, FedEx Tracking Record indicates that the Agency’s decision was delivered to Complainant’s California address on May 7, 2019, and that its proof of delivery was signed for by Complainant verifying the receipt of the same. Based on the foregoing, we find that Complainant fails to submit adequate justification to invoke waiver or equitable tolling for filing the appeal. CONCLUSION Accordingly, the appeal is DISMISSED as untimely. 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. 2021000837 3 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). 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. 2021000837 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 January 22, 2021 Date