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

Equal Employment Opportunity Commission

Jul 26, 2022

Appeal No. 2021002633 (E.E.O.C. Jul. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalya B.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021002633 Hearing No. 570-2019-00372X Agency No. BOP-2018-0094 DISMISSAL OF APPEAL By Notice of Appeal postmarked March 23, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the May 30, 2020,2 final action concerning her EEO 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., 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. On December 20, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), color (Dark Brown), disability (mental and physical), and age (43), and in reprisal for prior protected EEO activity, when 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 Pursuant to Complainant’s request, the Administrative Judge (AJ) ordered the dismissal of Complainant’s hearing request on April 20, 2020. EEOC regulations state that an AJ’s decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. 1614.110(i). The Agency did not issue a final order; as such, the AJ’s decision became the Agency’s final action on May 30, 2020. 2021002633 2 Complainant’s requests for a reasonable accommodation were denied; her request for continued Leave Without Pay was denied; and Complainant was removed from her position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). On September 21, 2018, Complainant timely requested a hearing. On October 29, 2018, the Agency issued a final decision finding that Complainant did not establish that the Agency subjected her to discrimination.3 On April 17, 2020, Complainant withdrew her hearing request, and the AJ issued the order to dismiss the hearing request on April 20, 2020. The instant appeal was filed on March 23, 2021. The Agency did not respond to Complainant’s appeal. The Commission’s regulations stipulate that, if the Agency does not issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision becomes the Agency’s final action. 29 C.F.R. § 1614.109(i). Here, there is no evidence that the Agency issued a final order adopting the AJ’s dismissal order of Complainant’s hearing request. While the Commission has held there is no regulatory provision that sets a specific time limitation for filing an appeal in circumstances wherein an AJ’s decision becomes final by operation of 29 C.F.R. § 1614.109(i), the time for Complainant to file an appeal is governed by the doctrine of laches, “an equitable remedy under which an individual’s failure to diligently pursue their actions can bar their claims.” Avery S. v. Dep’t of the Treasury, EEOC Request No. 2020000221 (Jan. 22, 2020) (quoting O’Dell v. Dep’t of Health & Human Servs., EEOC Request No. 05901130 (Dec. 27, 1990). Complainant filed her appeal in March 2021, approximately one year after the AJ’s decision became final in April 2020, and we find that Complainant’s appeal is untimely under the doctrine of laches. See Cathie K. v. Soc. Sec. Admin., EEOC Appeal No. 2020000209 (Apr. 27, 2021) (doctrine of laches was applicable when the complainant did not act with due diligence in filing her appeal until almost one year after receiving the AJ’s decision); Bill A. v. Dep’t of Transp., EEOC Appeal No. 2019002157 (July 21, 2020) (appeal dismissed as untimely where the complainant waited eleven months to file appeal where the agency did not issue a final order). On appeal, Complainant asserts that she voluntarily withdrew her hearing request due to various reasons, such as issues with a romantic relationship; family illness; and being a victim of fraud and hacking, and she requests a reinstatement of her hearing request.4 However, we find that Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal. 3 We note that the Agency properly gave Complainant appeal right to the Merit Systems Protection Board, and that Complainant did not appeal the Agency’s final decision with the Commission. 4 We note that Complainant voluntarily withdrew her request for a hearing, and she is no longer entitled to a hearing. See Hansen v. Dep’t of Justice, EEOC Appeal No. 0120112338 (Sept. 23, 2011). 2021002633 3 Accordingly, Complainant’s March 23, 2021 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. 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. 2021002633 4 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 July 26, 2022 Date