Iona A.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

0120182415 (E.E.O.C. Nov. 5, 2019)

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

Iona A.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120182415

Hearing No. 410-2015-00267X

Agency No. ATL-14-0886

DISMISSAL OF APPEAL

By Notice of Appeal postmarked July 5, 2018, Complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the May 23, 2018, final
Agency decision (FAD) concerning her EEO 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.

At the conclusion of the investigation of her EEO complaint, Complainant timely requested a
hearing before an EEOC Administrative Judge (AJ). Complainant designated a non-attorney union
representative as her representative during the hearing process. On February 16, 2018, the AJ
assigned to the case dismissed Complainant’s hearing request and remanded the matter to the
Agency for the issuance of a FAD. The AJ’s decision dismissing the hearing request properly listed
the correct address for filing an appeal with the Commission’s Office of Federal Operations.

There is no indication that Complainant was represented by an attorney or notified the Agency that
she had retained an attorney to represent her on this matter before the Agency issued its FAD on
May 23, 2018.

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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A copy of the UPS tracking information reveals that the FAD was received at Complainant's
address of record on June 1, 2018, and Complainant’s Notice of Appeal form states that she
received the FAD on June 1, 2018. 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 and listed the correct address for filing an appeal with the
Commission. Because the 30th day after June 1, 2018, was a Sunday, Complainant had to file her
appeal no later than Monday, July 2, 2018, in order to be considered timely. 29 C.F.R. §
1614.604(d). The instant appeal was postmarked on July 5, 2018.

In a July 5, 2018, letter that was attached to the appeal, an attorney stated that he represented
Complainant and explained that he had originally mailed the appeal to the Commission on June
29, 2018, but that it was returned to him by the Postal Service because it “was inadvertently mailed
to the wrong P.O. Box.” The Notice of Appeal form, which was signed by the attorney on June 28,
2018, contained the correct address for the Commission at the top of the page. There was also a
scanned image of the envelope that was returned to sender, which shows that Complainant’s
attorney initially mailed the appeal to an out-of-date P.O. box that had previously been used by the
Commission.

On July 30, 2018, Complainant’s attorney sent the Commission another letter and a brief in support
of her appeal. In the letter, the attorney argues that the July 5, 2018, appeal was timely. The attorney
notes that 29 C.F.R. § 1614.402(a) provides that, if a complainant is represented by an attorney of
record, the 30-day time period to file an appeal starts from the receipt of the FAD by the attorney.
According to the attorney, he did not receive a copy of the FAD until Complainant emailed it to
him on June 8, 2018, and the July 5, 2018, appeal was filed within 30 days of that date.

In response to Complainant’s appeal and the July 30, 2018, letter, the Agency contends that the
appeal was untimely filed because it was not filed within 30 days of the date Complainant received
the FAD. The Agency notes that on appeal Complainant does not argue or provide any evidence
that she was represented by an attorney of record before the issuance of the FAD.

Appeals to the Commission must be filed within thirty (30) calendar days after a complainant
receives notice of an agency's final action. 29 C.F.R. § 1614.402(a). Specifically, our regulations
provide that if a complainant is represented by an attorney of record, the 30-day time period shall
be calculated from the receipt of the required document by the attorney. In all other instances, the
time within which to appeal shall be calculated from the receipt of the required document by the
complainant. 29 C.F.R. § 1614.402(b). If a complainant or the complainant's representative does
not file an appeal within the designated time limit, the appeal is untimely and will be dismissed by
the Commission unless the principles of waiver, estoppel or equitable tolling apply. 29 C.F.R. §§
1614.403(c), 1614.604(c); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990); Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 398 (1982).

Here, Complainant’s attorney argues that the instant appeal was timely filed because he filed the
appeal within 30 days of receiving a copy of the FAD until June 8, 2018.
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However, there is no evidence in the record that Complainant notified the Agency that she had
retained this attorney or any attorney prior to the issuance of the FAD. We find that the July 5,
2018, appeal is untimely because the 30-day period began when Complainant, who did not have
an attorney of record, received the FAD on June 1, 2018. See Annie F. v. Dep’t of Veterans Affairs,
EEOC Appeal No. 0120180411 (April 10, 2019) (timeliness of appeal calculated from date
complainant received FAD where complainant provided agency with attorney of record’s name,
address, and contact information a week after receiving FAD).

Complainant’s attorney requests that the appeal be considered timely because he mailed the appeal
within the 30-day period, but to the wrong address. However, the AJ’s decision and the Agency’s
FAD both properly notified Complainant of the proper mailing address for the Commission. The
Commission has consistently held that, when provided with the proper address, filing an appeal at
the wrong address does not constitute a proper filing. See Pacheco v. U.S. Postal Serv., EEOC
Request No. 05930700 (Sep. 10, 1993); see also Isidro A. v. Dep’t of Interior, EEOC Appeal No.
0120141458 (July 21, 2016). Complainant has not offered adequate justification for waiving or
otherwise extending the applicable time limit for filing her appeal.

CONCLUSION

Accordingly, Complainant's July 5, 2018 appeal is hereby DISMISSED because it was untimely
filed and because she has not provided adequate justification for extending the applicable time
limit. 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.
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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 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

November 5, 2019
Date