[Redacted], Tessa G., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Aug 16, 2022

Appeal No. 2022002981 (E.E.O.C. Aug. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2022002981 Agency No. HS-HQ-01891-2021 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 5, 2022, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as an Acting Area Commander at the Agency’s Federal Protective Service in Fort Snelling, Minnesota. On August 19, 2021, Complainant sought EEO counseling alleging that she was being subjected to harassment sufficient to create a hostile work environment based on her sex and in reprisal for prior protected activity After Complainant initiated the EEO complaint process, the EEO Counselor issued a Notice of Right to File a Complaint (hereinafter referred to as “Notice”), indicating that a formal complaint should be filed within fifteen calendar days of receipt of the Notice. The record reflects that Complainant acknowledged receiving the Notice on September 29, 2021. 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. 2022002981 2 On November 1, 2021, Complainant filed her formal complaint 18 days beyond the limitation period for timely filing a formal EEO complaint. On April 5, 2022, the Agency issued its final decision dismissing the final complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for being untimely filed. The Agency determined that the November 1, 2021 formal complaint was filed more than fifteen days after it determined that Complainant had received the Notice on September 29, 2021. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. The Agency’s final decision dismissing the formal complaint due to its untimely filing was proper. Here, following her receipt of the Notice on September 29, 2021, Complainant had to file her formal complaint within the requisite 15-day period. However, Complainant’s formal complaint, filed on November 1, 2021, was well beyond the limitations period set forth in the regulations. On November 8, 2021, when asked why she did not file her complaint until November 1, 2021, Complainant stated “I have been awhile on bereavement leave for the unexpected passing of my mother.” While we sympathize with Complainant’s loss, without more, she has not presented adequate justification for extending the limitation period beyond fifteen days. The Agency’s final decision to dismiss the formal complaint for untimely filing 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. 2022002981 3 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. 2022002981 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 August 16, 2022 Date