U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Deborah C.,1
Complainant,
v.
Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 2019002613
Agency No. HUD-00111-2018
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated March 8, 2019, dismissing a formal
complaint of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Management Analyst for the Agency in
Chicago, Illinois. On December 14, 2018, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination based on disability and in reprisal for prior protected
activity.
In its final decision dated March 8, 2019, the Agency dismissed Complainant’s formal complaint
on the grounds it was untimely filed. The Agency reasoned that Complainant received the
Notice of Right to File a Formal Complaint (Notice) on November 8, 2018 via email, but did not
file her formal complaint until December 14, 2018, outside of the applicable time period.
The instant appeal followed. On appeal, Complainant, through her attorney, requests that we
reverse the Agency’s final decision dismissing the formal complaint. Complainant requests that
we apply equitable tolling to the instant matter.
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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Specifically, Complainant asserts that “[i]t is clear that the [Complainant] was confused about
what her obligations were upon receipt of [the EEO Counselor’s] November [8, 2018] email.”2
ANALYSIS AND FINDINGS
The Agency properly dismissed Complainant’s formal complaint on the grounds it was untimely
filed. 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 fifteen
(15) days of receiving notice of the right to do so.
The record reflects the following chronology of events. The record contains a copy of a Notice
sent to Complainant via certified mail dated September 6, 2018. The record contains an email
dated September 24, 2018, from Complainant to the EEO Counselor stating that she had not yet
received the Notice. In response, via email dated September 25, 2018, the EEO Counselor
responded that he sent the Notice via certified mail on September 6, 2018.
In an email to Complainant dated November 8, 2018, the EEO Counselor stated a Notice “was
mailed to you on September 6, 2018 by certified mail and records indicate that it was received on
September 11, 2018.3 However, you indicated that you nor anyone in your household has
received the [Notice].. to avoid further delays I am issuing the Notice again through email
pending the verification of the signature card from the previous Notice. Please keep in mind that
the verification of the prior [Notice] may have an effect on the acceptance of your formal
complaint. Please reply with a [confirmation] email verifying that you are able to open the
attachment and have [received] the [Notice] and formal complaint form.”
Complainant responded that same day (November 8, 2018) via email that she was able to “view
and print both attachments.” Complainant further stated, “I will be on vacation next week, but I
will send it directly to the address on the memo.”
In a subsequent email from Complainant to the EEO Counselor dated November 13, 2018,
Complainant stated “I am requesting you send me the letter via certified mail.” The EEO
Counselor sent an automatic response to Complainant via email dated November 13, 2018 that
he was out of the office and provided a phone number for immediate assistance.
2 We find Complainant’s May 20, 2019 brief to be timely filed. The record reflects that the
Commission’s Office of Federal Operations (OFO) granted Complainant an extension until May
20, 2019 to submit her brief.
3 While the record contains a “USPS Tracking” printout that the September 6, 2018 Notice was
delivered on September 11, 2018 and “left with individual,” the record does not contain a signed
return receipt card for the September 6, 2018 Notice.
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Complainant sent a follow up email on November 20, 2018 to the EEO Counselor inquiring
about the status of her request for the Notice to send out again via certified mail. The record
contains an automatic response email to Complainant from the EEO Counselor that he was out of
the office.
The record also contains an email dated November 26, 2018 to Complainant from another
Agency EEO Officer informing Complainant that her EEO Counselor is out of the office and that
the EEO Counselor had re-sent Complainant the initial September 6, 2018 Notice via email on
November 8, 2018 and that Complainant had 15 days from receipt (November 23, 2018) to file
her formal complaint.
We find that the Agency’s dismissal was proper. The record contains a copy of the Agency’s
November 8, 2018 Notice sent to Complainant via email. The November 8, 2018 Notice
provided the Agency mailing address for Complainant to file her formal EEO complaint. The
November 8, 2018 Notice clearly set forth that “your formal complaint will be timely if it is
received or postmarked no later than fifteen calendar days after your receipt of this notice.” As
set forth above, Complainant via an email dated November 8, 2018 confirmed that she received
the Agency’s November 8, 2018 Notice. Complainant acknowledges, in her brief, that she filed
her formal complaint on December 14, 2018, outside of the applicable time period.
We are not persuaded by Complainant’s arguments that equitable tolling should apply in the
instant matter. If Complainant had concerns that the Agency would not accept her formal
complaint, she should have timely filed (within 15 days of receipt of the November 8, 2018
Notice) her formal complaint, and then she could have subsequently appealed the Agency’s final
decision if it dismissed her formal complaint to the Commission’s Office of Federal Operations.
We AFFIRM the Agency’s final decision dismissing the formal complaint for the reason
discussed above.
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.
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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.
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
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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 17, 2019
Date
