U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Simonne J.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency. Appeal No. 2019003400 Agency No. HHS-SAM-0003-2018 DISMISSAL OF APPEAL On April 24, 2019, 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 March 7, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. 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 Complainant’s appeal as untimely. ISSUES PRESENTED The issue presented is whether Complainant’s appeal of the Agency’s final decision was timely filed. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-11, at the Agency’s Administrative Operations Branch (AOB), Division of Operational Support, Substance Abuse and Mental Health Services Administration (SAMHSA) facility in Rockville, Maryland. Complainant had been in that role as of February 4, 2018. 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. 20190034002 Prior to that, Complainant worked in Substance Abuse and Mental Health Services Administration (SAMHSA), Office of Management, Technology and Operations (OMTO) also in Rockville, Maryland. On March 23, 2018, Complainant initiated EEO Counselor contact. On June 1, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of national origin (Mexican American), age (51), and reprisal for prior protected EEO activity when: 1. on or around June 2017 and continuing, management has given younger Puerto Rican colleagues the larger and more important projects2; 2. on January 7, 2018, Complainant learned she would not receive her career ladder promotion to the (GS-12) Management Analyst position; 3. on January 26, 2018, Complainant learned she was being involuntarily assigned to another branch within the Office of Management, Technology and Operations (OMTO); 4. on January 26, 2018, Complainant learned her 2017 Performance Management Appraisal Program (PMAP) evaluation did not accurately reflect her job performance; and, 5. on February 28, 2018, Complainant learned the grievance she filed to have her PMAP evaluation increased was denied. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). On March 7, 2019, the Agency issued its final decision and sent it to Complainant’s address of record via first class mail. In its final decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On April 24, 2019, Complainant filed her appeal by mail. 2 Despite accepting the entirety of Complainant’s claims on January 15, 2019, the Agency stated in its March 7, 2019 final decision that Claims 1 and 2 were not timely, and therefore only analyzed under a hostile work environment theory. 20190034003 CONTENTIONS ON APPEAL Complainant did not provide a brief on appeal. The Agency asserts that it issued the final decision and mailed it to Complainant by first class mail on March 7, 2019. The Agency states that the final decision properly informed Complainant of the time limit for filing her appeal to the Commission and the consequences for an untimely appeal. The Agency states that pursuant to 29 C.F.R. § 1614.604(b), it is presumed that Complainant received the final decision within five days of it being mailed. Therefore, she would have had until April 11, 2019 to timely file an appeal. The Agency argues that since Complainant did not file her appeal until April 24, 2019, her appeal should be deemed untimely and dismissed. In the event that the Commission accepts the appeal, the Agency argues that Complainant failed to present any persuasive arguments or evidence to show that she satisfied her burden of proof regarding her claims of discrimination. The Agency requests that the Commission affirm the final decision. 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). Our regulations further provide that a document is deemed timely if it is delivered in person or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. According to the Agency, it issued the final decision and mailed it to Complainant by first class mail on March 7, 2019. The Agency states that the final decision properly informed Complainant of the time limit for filing her appeal to the Commission and the consequences for an untimely appeal. The Agency’s decision included a certificate of mailing which stated that the presumption that Complainant received the final decision within five days of it being mailed, or March 12, 2019. Therefore, the Agency argued that she would have had until April 11, 2019, to timely file an appeal. Complainant did not file her appeal until April 24, 2019. The Agency argues that her appeal should be deemed untimely and dismissed. Upon review of the record, we find that the Agency mailed its final decision on March 7, 2019. Based on the FAD, it is presumed that Complainant received it on March 12, 2019. Complainant did not challenge the presumed date of receipt of the FAD. The postmark on Complainant’s appeal was dated April 24, 2019, outside of the 30-day time frame. CONCLUSION Accordingly, the appeal is DISMISSED on the grounds of untimely filing of the appeal. 20190034004 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 20190034005 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, Director Office of Federal Operations September 2, 2020 Date
