[Redacted], Stephen R., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2020002509 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stephen R.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2020002509 Hearing No. 520-2019-00581X Agency No. HHS-FDAORANE-029-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency’s decision dismissing the complaint is AFFIRMED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chemist, GS-1320- 12, at the Agency’s Northeast Food and Feed Laboratory facility in Jamaica, New York. On March 28, 2018, Complainant filed a complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (Asian), national origin (Chinese), sex (male), color (yellow), age (70), and in reprisal for prior protected EEO activity. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal 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. 2020002509 2 Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a Motion to Dismiss. Complainant filed a response on October 31, 2019. Over Complainant’s objections, the AJ granted the Agency’s motion and dismissed Complainant’s complaint on the grounds that Complainant failed to timely file the complaint. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision dismissing the complaint became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant filed the instant appeal. ANALYSIS AND FINDINGS Complaints must be filed within 15 days of receipt of the notice to file a complaint. 29 C.F.R. § 1614.106(b). Complaints not filed within that time limit shall be dismissed, unless there is reason to apply estoppel, waiver, or equitable tolling. See 29 C.F.R. § 1614.107(a)(2). Complainant received the notice of right to file a complaint on March 10, 2018, but did not file the complaint until March 28, 2018, which was beyond the 15-day time limit. Complainant does not argue he timely filed his complaint. Instead, Complainant argues that snow delayed his receipt of the notice of right to file a complaint and closed his office on March 21, 2018. The record, however, shows that Complainant received the notice on March 10, 2018. Furthermore, there is no explanation why the purported closing of Complainant’s office on March 21, 2018 several days before the expiration of the deadline for filing the complaint, should allow equitable tolling of the time limit for filing the complaint. We agree with the AJ that Complainant’s argument is insufficient to extend the deadline. We find that the AJ and Agency properly dismissed the complaint for being untimely filed. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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. 2020002509 3 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 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. 2020002509 4 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 June 2, 2021 Date