[Redacted], Maxima R., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Apr 26, 2022

Appeal No. 2021004474 (E.E.O.C. Apr. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxima R.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021004474 Hearing No. 460-2021-00047X Agency No. BOP-2019-0593 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an August 2, 2021 final agency decision 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 Senior Officer, GL- 08, at the Agency’s Federal Correctional Institution in Beaumont, Texas. On April 30, 2019, Complainant initiated equal employment opportunity (EEO) contact alleging that the Agency discriminated against her on the bases of sex and reprisal for prior protected EEO activity when, on several occasions, the Agency failed to select her for promotions. On June 13, 2019, the assigned EEO Counselor sent Complainant an email entitled, “Notice of Right to File a Discrimination Complaint” (“NORF”) with attachments. The email stated, “If you 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. 2021004474 2 file a complaint, it must be in writing, signed, and filed, in person or by mail/fax within 15 days after receipt of this notice.” On July 2, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex and reprisal when: 1. on March 28, 2019, it failed to select her for a Case Management position, 2. on April 9, 2019, it failed to select her for a Correctional Systems Officer position, and 3. on May 15, 2020, it failed to select her for either of two vacancies for Case Manager. Following an EEO investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On July 1, 2021, following an Agency Motion to Dismiss and opposition by Complainant, the assigned AJ issued a decision dismissing Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely filing of the formal complaint.2 The AJ reasoned that the Agency emailed the NORF on June 13, 2019, to Complainant’s email of record (her work email), Complainant was at work between June 15 and June 22, 2019. Agency records show that the email was delivered on June 13, 2019 at 12:11pm, was third party downloaded on June 20, 2019, and was “read” on June 22, 2019. The AJ found that Complainant did not provide adequate justification as to why she did not read the email earlier and cannot now grant herself an extension because she failed to open the email titled “Notice of Right to File a Discrimination Complaint.” The instant appeal followed from Complainant. On appeal, Complainant stated that she did not open the NORF email until June 22, 2019, and filed her complaint within 15 calendar days of that date on July 2, 2019. Complainant stated that the email did not contain a certificate of mailing and the EEO Counselor told her that the timeframe began when she opened the email. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written 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 § 1614.106, unless the agency extends the time limits in accordance with § 1614.604(c). Here, the record discloses that Complainant received the NORF on June 13, 2019, to the email address Complainant provided to the Agency - her work email. Complainant was at work 2 The AJ noted that the allegations of non-selections based on reprisal were subsumed in a separate March 21, 2016 class complaint against the Agency in Turner v. Dep’t of Justice. 2021004474 3 between June 15 and June 22, 2019, but did not “read” the email until June 22, 2019. Complainant filed her formal complaint on July 2, 2019, although the NORF indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt. We find that Complainant filed her formal complaint beyond the limitation period and, on appeal, has not offered adequate justification to warrant an extension of the time limit for filing the complaint. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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 2021004474 4 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. 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. 2021004474 5 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 April 26, 2022 Date