Rudolf D.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.

Equal Employment Opportunity Commission

May 3, 2018

0120162152 (E.E.O.C. May. 3, 2018)

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

Rudolf D.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Institute of Standards and Technology),
Agency.

Appeal No. 0120162152

Agency Nos. 57-2012-01874 & 57-2013-00090

Hearing Nos. 531-2013-00154X & 531-2014-00116X

DISMISSAL OF APPEAL

By Notice of Appeal postmarked June 21, 2016, Complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the May 16, 2016 final
Agency decision (FAD) concerning his EEO 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq.

A complainant’s appeal of an agency’s final action must be filed within 30 days of receipt of the
final action. 29 C.F.R. § 1614.401(a); 29 C.F.R. § 1614.402(a). The Agency sent a copy of its
final decision to Complainant via United Parcel Service (UPS), who assigned it the tracking
number 1ZA5476Y98714033. Agency’s Response to Appeal (Response Brief), Exhibit P. A UPS
proof-of-delivery document indicates that the item with tracking number 1ZA5476Y98714033
was received at Complainant’s address of record on May 19, 2016, and that a signature was
required for delivery. Response Brief, Exhibit P. A review of the FAD reveals that the Agency
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 June 18, 2016. Since June 18, 2016 fell on a Saturday, however,

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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the appeal had to be postmarked no later than the next business day, Monday, June 20, 2016. As
previously noted, the Appeal was postmarked Tuesday June 21, 2016. Response Brief, Exhibit R.

If the Complainant is represented by an attorney of record, then the 30-day time period provided
in paragraph (a) of this section within which to appeal shall be calculated from the receipt of the
required document by the attorney. 29 C.F.R. § 1614.402(b). In all other instances, the time within
which to appeal shall be calculated form the receipt of the required document by the complainant.
Id. Complainant’s representative in this case is not an attorney but rather a business consultant
who advises individuals who have complaints before the Commission or the Merit Systems
Protection Board regarding mediation. Consequently, the time within which Complainant needed
to file his appeal must be calculated from May 19, 2016, the day that he received the Agency’s
final decision.

Complainant has not offered adequate justification for an extension of the applicable time limit for
filing his appeal. Accordingly, Complainant's June 21, 2016 appeal is hereby dismissed. See 29
C.F.R. § 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 Agency’s request must be
submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
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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 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

May 3, 2018
Date