U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verdell A.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020003028 Hearing No. 520-2019-00562X Agency No. HS-TSA-25217-2016 DECISION On March 12, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), prior to the Agency’s issuance of its March 23, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging 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. Though the appeal was prematurely filed with the Commission, we find that the appeal was perfected upon the Agency’s issuance of its final decision. See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 2020001116 (Mar. 23, 2021) (finding premature appeal to be perfected upon the issuance of the agency’s final decision).2 For the following reasons, the Commission AFFIRMS the Agency’s final order. 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 Given our precedent in EEOC Appeal No. 2020001116, we shall deny the Agency’s motion to dismiss for prematurely filing. 2020003028 2 ISSUE PRESENTED The issue presented concerns whether the Agency’s implementation of the AJ’s decision to dismiss Complainant’s complaint was appropriate. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer, at the Agency’s John F. Kennedy International Airport in Jamaica, New York. She initially sought EEO counseling in December 2015. On March 3, 2016, following the completion of the pre-complaint process, the Agency issued Complainant the required Notice of Right to File a Formal Complaint (NRTF) via email, which advised Complainant that she had 15 calendar days to file her formal complaint. However, the Agency indicated that Complainant did not file a formal complaint within the designated filing period. More than two years later, Complainant contacted the Agency’s EEO Office on September 8, 2018, to inquire about the status of her EEO complaint. In response to Complainant’s inquiry, the Agency’s EEO Office resent the NRTF by email on September 13, 2018, which again advised Complainant that she had 15 calendar days of receipt of the NRTF to file her formal complaint. Approximately 48 days later, on October 31, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On November 8, 2015, management charged Complainant one hour of absent without leave (AWOL); 2. On November 18, 2015, management issued Complainant a proposed letter of reprimand (LOR); 3. On December 10, 2015, management issued Complainant a low score of 3.0 in the category of “Interpersonal Skills” and “Integrity” on her Transportation Officers Performance System (TOPS); and 4. On February 17, 2016, management issued Complainant a LOR. Despite Complainant’s failure to timely file her formal complaint, the Agency accepted all four claims for investigation. Following the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. However, on February 3, 2020, the Agency filed a motion to dismiss based on Complainant’s failure to timely file a formal complaint. 2020003028 3 Complainant timely opposed the Agency’s motion, wherein she argued, in relevant part, that she was not at fault for the untimely filing because the “onus of the filing responsibility should always be placed on the Agency, not the employee[s] who are filing claims through EEO.” See Complainant’s Opposition Brief at 2. In so arguing, Complainant emphasized that she was not familiar with EEO rules and regulations. Id. at 1. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion to dismiss due to Complainant’s failure to timely file her formal complaint. Thereafter, the Agency issued a final order fully implementing the AJ’s procedural dismissal. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant reiterates the contentions that she previously made in her opposition brief and resubmits several documents that appear to be already part of the record. The Agency opposes Complainant’s appeal and requests that the Commission affirm its final order.3 STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 3 While we acknowledge the Agency’s motion to strike the submissions that Complainant submitted after filing her initial appellate brief, we will nevertheless consider all of her appellate submissions, as they appear to be duplicative of the files that are already contained in the record. 2020003028 4 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 15 days of receiving notice of the right to do so. The Commission has held that an agency does not waive its right to dismiss a complaint on the grounds of timeliness by accepting and investigating a complaint. Rodriguez v. Dep’t of Def., EEOC Appeal No. 01953421 (Apr. 25, 1996) citing Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981). Furthermore, the Commission has also held in various instances that it was not improper for an agency to wait until the hearing stage or after the hearing to reject or dismiss a complaint for procedural reasons. Mitchell v. Dep’t of Veterans Affairs, EEOC Appeal No. 01962214 (Feb. 26, 1997); Cook v. Soc. Sec. Admin., EEOC Appeal No. 01944962 (Oct. 12, 1995) (agency’s procedural dismissal of the complaint issued after issuance of AJ’s findings and conclusions, but before agency’s receipt of the AJ’s findings and conclusions). In this case, while we considered Complainant’s contentions regarding her lack of familiarity with the EEO process, we nevertheless concur with the AJ’s decision to dismiss the complaint. Here, our review of the record shows that the Agency resent the second NRTF to Complainant on September 13, 2018, via email. Though the NRTF clearly advised Complainant that she had 15 calendar days from receipt of the NRTF to file her formal complaint, Complainant failed to do so within the designated period. She filed her complaint 48 calendar days after she received the NRTF. The record further shows that despite Complainant’s untimely filing, the Agency accepted the complaint for investigation. The Agency only raised the issue of timeliness at the hearing stage and ultimately prevailed on that argument when the AJ granted its motion to dismiss. Having reviewed the record, we find that the complaint was properly dismissed, as Complainant has not provided adequate justification for the delay. See Complainant v. Dep’t of Justice, EEOC Appeal No. 0120141191 (May 23, 2014) (affirming AJ’s dismissal of complaint based on untimely filing of formal complaint); see also Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120140656 (Dec. 11, 2014). In reaching this conclusion, we note that the Agency raised the issue of timeliness before the AJ rendered a decision. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 2020003028 5 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). 2020003028 6 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 19, 2021 Date
