[Redacted], Maximo L, 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2022001597 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo L,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2022001597 Hearing No. 540-2020-00150X Agency No. FS-2019-00600 DISMISSAL OF APPEAL Complainant filed a Notice of Appeal, that he dated November 12, 2021, with the Equal Employment Opportunity Commission (EEOC or Commission) from the January 28, 2020 final decision of the Agency concerning his complaint alleging 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. On May 9, 2019, Complainant had filed a formal EEO complaint alleging discrimination by the Agency on the bases of religion, sex, age, race, disability discrimination in addition to alleging retaliation. After formally investigating this matter, the Agency provided him and his attorney with a copy of the EEO report of investigation and also notified them of Complainant’s right to request a hearing before an EEOC Administrative Judge (AJ). Confirmation from the Postal Service showed that copies of the EEO investigative report and the notice of right to request an AJ hearing were received by Complainant and his attorney representative by November 21, 2019. 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 2022001597 In accordance with 29 C.F.R. § 1614.108(f), after they had received the report and notice, Complainant or his attorney had thirty calendar days to timely file a request for a hearing. Since both failed to request a hearing on or before December 22, 2019, then on January 28, 2020, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), concluding Complainant failed to prove that he was subjected to discrimination or unlawful retaliation as alleged. On that same date, Complainant’s attorney responded to the receipt of the Agency’s final decision as follows: Please be advised that on behalf of [Complainant], we are requesting a hearing before an EEOC Administrative Judge. While this request is outside the 30 days listed, the case was inadvertently calendared in our office for a response February 18, 2020. Pursuant to 29 C.F.R. § 1614.110(b) [Complainant] could proceed through an EEOC appeal or file a federal civil case. With that in mind, we would request that the matter still be set for a hearing before an Administrative Judge. On October 13, 2021, an EEOC AJ who had been assigned to Complainant’s matter dismissed his hearing request as untimely. In a document dated October 15, 2021, the Agency issued an order adopting the AJ’s dismissal of Complainant’s hearing request. The instant appeal followed on November 12, 2021. On appeal, Complainant has offered insufficient explanation for excusing the otherwise applicable regulatory deadlines. We find that the Complainant’s hearing request was untimely and properly dismissed by the AJ. Complainant’s November 12, 2021 appeal of the Agency’s January 28, 2020 final decision was likewise untimely. Accordingly, Complainant's appeal is hereby DISMISSED. 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. 3 2022001597 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. 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. 4 2022001597 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 March 22, 2023 Date