[Redacted], Erich B., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

May 9, 2022

Appeal No. 2022001747 (E.E.O.C. May. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erich B.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2022001747 Hearing No. 570-2020-00358X Agency No. 2019-0053-HQ DECISION On February 10, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 16, 2021, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 the appeal as untimely. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Engineer, GS-9, for the Agency’s Office of Land and Emergency Management, Field Operations Branch in Lenexa, Kansas. On May 10, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (mental and physical) and age (58) when: on March 28, 2019, the Director, Office of Emergency Management [Director] directed Complainant to be reassigned and relocated, and during a management 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. 2022001747 2 staff meeting, [Director] stated “we don’t want any Geritols; we don’t want to hire somebody who is going to come in with a walker in two weeks. We want people who are young and hungry.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 13, 2021, motion for a decision without a hearing and issued a decision on December 8, 2021. Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant contends that he has established discrimination because the Agency’s stated reasons for his reassignment are false. In response, as an initial matter, the Agency argues that the appeal should be dismissed as untimely filed. Regarding the merits of the case, the Agency maintains that the AJ correctly found that Complainant had not established that he was subjected to discrimination as alleged. ANALYSIS AND FINDINGS Appeals to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency’s final action, pursuant to 29 C.F.R. § 1614.402(a). If a complainant does not file an appeal within the time limits, the appeal shall be dismissed as untimely. See 29 C.F.R. § 1614.403(c). In this case, the Agency asserts that it issued its final decision and sent it to Complainant via email on December 16, 2021. In support, the Agency has provided a copy of the email sent to Complainant, with the final order attached which clearly informed Complainant that he could file an appeal within 30 days by using the Commission’s Public Portal. The Agency also submitted a copy of the Microsoft Outlook delivery notification which stated: “Delivery to these recipients or groups is complete. . . .”2 See Agency’s Brief Ex 4 and 5. Complainant does not dispute that he received the Agency’s final order on December 16, 2021. Further, the record reflects that he filed his appeal on February 10, 2022, through the EEOC’s Public Portal, well outside the 30-day time limit for timely filing. Complainant has not provided any justification for the untimely filing of his appeal. 2 The email proceeded to note that “no delivery notification was sent by the destination server: [Complainant’s email address].” 2022001747 3 CONCLUSION Accordingly, the appeal is DISMISSED on the grounds that it was untimely filed. See 29 C.F.R. § 1614.403(c). 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. 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. 2022001747 4 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. 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 May 9, 2022 Date