Gwendolyn G.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 26, 2020

2019004933 (E.E.O.C. Oct. 26, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gwendolyn G.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019004933 Agency No. NY-13-0386 DISMISSAL OF APPEAL By Notice of Appeal postmarked July 15, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the May 14, 2019 final Agency decision (FAD) concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission DISMISSES Complainant’s appeal as untimely. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor, GS-0905-12, at the Agency’s Office of Disability Adjudication and Review in Buffalo, New York. On July 16, 2013, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment (non-sexual) based on age (over 40), disability (physical), and reprisal (prior EEO activity). In support of her claim of harassment, Complainant alleged a series of events from April 2012 through November 28, 2013. 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. 2019004933 2 At the conclusion of 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). The Agency stated that when it did not hear from Complainant within the specified time limits, a FAD was issued on October 30, 2014. Complainant appealed the FAD to the Commission, alleging that she did not receive the ROI. In EEOC Appeal No. 0120150469 (Aug. 2, 2017), the Commission vacated the Agency’s final decision and ordered the Agency to submit a copy of the complaint file to the Hearings Unit of the New York District Office within 15 days. On April 16, 2019, Complainant’s hearing request was dismissed pursuant to her withdrawal and the matter was remanded to the Agency for a final decision. On May 14, 2019, the Agency issued its final decision and sent it to Complainant’s address of record via first class mail. In its final decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discriminatory harassment as alleged. On July 15, 2019, Complainant filed her appeal by mail. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency denied her a workable reasonable accommodation. Complainant further asserts that the Agency denied her promotions based upon her disability and subjected her to harassment and retaliation for filing EEO complaints and grievances. The Agency asserts that Complainant’s notice of appeal was untimely filed and should be dismissed. The Agency contends that alternatively, the FAD was correct and should be affirmed. ANALYSIS AND FINDINGS Appeals to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency’s final decision. 29 C.F.R. § 402(a). Our regulations further provide that a document is deemed timely if it is delivered in person or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable time period. Here, Complainant indicated on her request for appeal that she received the Agency’s final decision on an unknown date in May 2019. A review of the FAD reveals that the Agency properly advised Complainant that she had thirty (30) calendar days after receipt of its final decision to file her appeal with the Commission. Assuming that Complainant received the FAD on the last possible date in May 2019, on May 31, 2019, Complainant was required to submit an appeal no later than June 30, 2019. Complainant did not submit her appeal until July 15, 2019, two weeks after the requisite time period had expired. Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal. 2019004933 3 CONCLUSION Accordingly, Complainant's July 15, 2019 appeal is hereby DISMISSED. See 29 C.F.R. § 1614.403(c). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2019004933 4 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 October 26, 2020 Date