Cyrus A.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Mar 28, 2019

0120180154 (E.E.O.C. Mar. 28, 2019)

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

Cyrus A.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.

Appeal No. 0120180154

Agency No. HHS-NIH-ORS-041-15

DISMISSAL OF APPEAL

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated August 18, 2017, concerning his complaint
of unlawful employment discrimination. At the time of events giving rise to this complaint,
Complainant worked as a Police Officer, GS-7, at the Agency’s Police Operations Branch,
Division of Police, Office of Research Services, National Institute of Health. On March 17,
2015, Complainant filed his complaint alleging discrimination in reprisal for prior EEO activity
when he was subjected to harassment in that: (1) on January 5, 2015, a letter of reprimand, issued
on September 30, 2014, was placed in his official personnel file; (2) on December 23, 2014, he
became aware that management denied him the opportunity to present an oral rebuttal to his
grievance appeal when they refused to address the grievance within the required time frame; and
(3) on December 9, 2016, he was notified that he was not selected for the merit promotion to the
rank of Master Patrol Officer with the National Institute of Health Police Department.

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.

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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Complainant admits that he received the Agency’s final decision on August 22, 2017. The
appeal was postmarked September 22, 2017 (one day after the September 21, 2017 deadline),
which was beyond the 30-day time limit set by the regulations. The record reveals that the
Agency’s decision explicitly informed Complainant of the time limits on his right to appeal. On
appeal, Complainant does 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 (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.
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).

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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

March 28, 2019
Date