Roscoe P.,1 Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Jan 14, 2016

0120151895 (E.E.O.C. Jan. 14, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Roscoe P.,1
Complainant,

v.

Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Appeal No. 0120151895

Hearing No. 410-2013-0015X

Agency No. HHS-FDA-ORASE-056-12

DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the Agency’s final decision, dated
February 5, 2015, concerning his complaint of unlawful employment discrimination. In his
complaint, Complainant alleged discrimination based on sex (male), disability, and in reprisal
for prior EEO activity when he was subjected to harassment in that on February 8, 2012, and
June 4, 2012, he was denied a reasonable accommodation (telework); on January 31, 2012, he
was denied a promotion to a grade GS-9; on June 22, 2012, he was denied his request to
participate in the voluntary leave transfer program; on April 6, 2012, an identified
management official requested that his coworker give his work assignments to him to
complete; on August 7, 2012, he was required to returned to work from medical leave; and on
May 16, 2012, the management official questioned him about his leave request. 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 Agency’s final decision included a Certificate of Mailing indicating that for timeliness
purpose, the Agency will presume that this decision was received within five calendar days of

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.
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mailing, which was February 5, 2015, by Complainant and his attorney of record. See

29
C.F.R. § 1614.605(d). Complainant filed the appeal postmarked May 6, 2015, which was
beyond the 30-day time limit including the five-day extension, described above. The record
reveals that the Agency’s decision explicitly informed Complainant of the time limits on his
right to appeal. On appeal, Complainant merely indicates that he received the final Agency
decision on April 7, 2015. However, he does not dispute his attorney’s receipt of the final
Agency decision within five calendar days of its mailing. We find that Complainant did not
submit any adequate justification to invoke waiver or equitable tolling for filing the appeal.
Accordingly, the appeal is DISMISSED as untimely pursuant to 29 C.F.R. §1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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
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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

January 14, 2016
Date