[Redacted], Debbra R., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022004896 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Debbra R.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 2022004896 Agency No. 2022-WHSOSD-054 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated August 26, 2022, dismissing her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst, GS-0343-14, at the Agency’s Cost Assessment and Program Evaluation (CAPE) facility in Washington, DC. On August 19, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), religion (Baptist or Christian), and color (not specified) when, on June 3, 2022, her second-level supervisor issued Complainant an overall rating of 3-Fully Successful on her FY2021-2022 annual performance appraisal.2 The Agency dismissed the complaint as untimely filed, pursuant to 29 C.F.R. § 1614.107(a)(2). 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. 2 On her formal complaint, Complainant described her color as “African American.” 2022004896 2 The Agency reasoned that Complainant received the Notice of Right to File a Formal Complaint (“Right to File”) on July 31, 2022, via the Agency’s “DoD Safe” file-share server but did not file her formal complaint until August 19, 2022. Thus, she failed to comply with the fifteen-day time limit. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a complaint with an appropriate agency official within fifteen (15) calendar days after receipt of the notice of the right to file a formal complaint. 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §§§ 1614.105, .106, and .204(c), unless the agency extends the time limits in accordance with § 1614.604(c). Here, the record establishes that the Right to File was received by Complainant on July 31, 2022. The record contains an automated email dated July 31, 2022, at 1:56 pm, that states: “The file ‘Notice of Right to File ([Complainant’s last name] 2022-WHSOSD-054).pdf’” was picked up by Complainant using the code sent to Complainant’s email address. The email also indicates the drop-off of the file was completed on July 27, 2022, at 15:16:55 UTC. In addition, the note on the automated email states: “Notice of Right to File[.]” We also observe that Complainant does not dispute receipt of the Right to File. Thus, we find that there is enough detail in the record to confirm both what was sent to Complainant and when it was sent and received. But cf. Scarlet S. v. Dep’t of the Army, EEOC Appeal No. 2021003985 (Dec. 21, 2021) (reversing an agency’s dismissal on timeliness grounds where DoD Safe was used to transmit a file to complainant but the record did not contain an official date-and-time stamp showing when the file was dropped off or provide clear indication of the subject matter of the file). We conclude that the Agency has met its burden in showing that Complainant received the Right to File on July 31, 2022. As noted above, the formal complaint was filed on August 19, 2022, based on the date-stamp of Complainant’s digital signature. Therefore, Complainant’s filing was beyond the time limit. Moreover, she has failed to provide any justification to extend or toll the time limit. See 29 C.F.R. § 1614.604(c). Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 2022004896 3 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, a 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). 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. 2022004896 4 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 January 26, 2023 Date