Linette F.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

0120180838 (E.E.O.C. Sep. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Linette F.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120180838

Hearing No. 560-2015-00176X

Agency No. DAL-14-0594-SSA

DISMISSAL OF APPEAL

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order, dated November 14, 2017, concerning her
complaint of unlawful employment discrimination. At the time of events giving rise to this
complaint, Complainant worked as a GS-11 Claim Representative (Social Insurance Specialist)
assigned to the Agency’s Chickasha, Oklahoma Field Office, Oklahoma. On July 24, 2014,
Complainant filed her complaint alleging discrimination based on race, sex, and disability when:
(1) on May 24, 2014, she was not selected for a 120-day detail as a GS-12, Management Support
Specialist; and (2) on May 29, 2014, she was not selected for the following positions: the GS-
105-05/11 Social Insurance Specialist positions in Shawnee, Oklahoma; the GS-105-05/11
Social Insurance Specialist position in Oklahoma City, Oklahoma; and the GS-105-05/11 Social
Insurance Specialist position in Moore, Oklahoma

EEOC Regulation 29 C.F.R. § 1614.402 provides that appeals to the Commission must be filed
within 30 calendar days after complainants receive notice of the Agency’s decision. The
regulations further provide that a document shall be deemed timely if it is received or
postmarked before the expiration of the applicable filing period, or, in the absence of a legible

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.
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postmark, if it is received by mail within five days of the expiration of the applicable filing
period. 29 C.F.R. § 1614.604(b).

Complainant admits on appeal that she received the Agency’s final order on November 20, 2017.
The appeal however was postmarked December 29, 2017, which was beyond the 30-day time
limit set by the regulations. The record reveals that the Agency’s decision explicitly informed
Complainant of the time limits on her right to appeal. On appeal, Complainant’s non-attorney
representative indicates that the appeal was timely mailed to the Commission by placing an
envelope containing the appeal notice in the outgoing mail of the Agency’s Tulsa, Oklahoma
Office, without postage. Complainant’s representative indicates that when the mail was
returned, the representative re-mailed the appeal. We find that merely placing the appeal in the
Agency’s outgoing mail does not invoke waiver or equitable tolling for filing the appeal. We find
that the appeal was not filed until the postmark date of December 29, 2017, which was beyond
the 30-day time limit.

CONCLUSION

Accordingly, the appeal is DISMISSED as untimely pursuant to 29 C.F.R. § 1614.403(c).

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.
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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.
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

September 26, 2019
Date