U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garret W.,1 Complainant, v. Lana Hurdle, Acting Secretary, Department of Transportation (Transportation Administrative Service Center), Agency. Appeal No. 2021000779 Hearing No. 451-2020-00071X Agency No. HS-TSA-02232-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the EEOC Administrative Judge’s decision dated November 6, 2020, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as a Supervisory Transportation Security Officer at the Agency’s Austin Bergstrom International Airport in Austin, Texas. On October 28, 2019, Complainant filed a formal complaint claiming that the Agency discriminated against him and subjected him to harassment based on sex and in reprisal for prior protected EEO activity. The Agency accepted the formal complaint for investigation, and Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). Subsequently, the Agency issued a motion to dismiss Complainant’s complaint on procedural grounds. 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. 2021000779 2 Specifically, the Agency determined that Complainant’s formal complaint was untimely filed. See 29 C.F.R. § 1614.107(a)(2). On November 6, 2020, the AJ issued a decision dismissing Complainant’s formal complaint with prejudice, pursuant to 29 C.F.R. § 1614.109(b). The AJ determined that Complainant received the Notice of Right to File a Formal Complaint (Notice) on October 28, 2019. The AJ found, however, that Complainant did not file a formal complaint until November 13, 2019, which the AJ determined to be one day beyond the fifteen-day limitation period. The AJ acknowledged that Complainant filed a response to the Agency’s dismissal. The AJ, however, determined that Complainant did not provide good cause to excuse his failure to comply with the applicable time limits contained in 29 C.F.R. § 1614.106(b) or justification for extending the limitation period. The instant appeal followed. On appeal, Complainant states that he believed that because November 11, 2019, was Veterans Day, that he had until November 13, 2019 to timely file his formal complaint. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.109(b) states, in pertinent part, that an AJ may dismiss an EEO complaint on any of the procedural grounds detailed in 29 C.F.R. § 1614.107. The regulation 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, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Our review of the record indicates that Complainant received the Notice on October 28, 2019. Therefore, Complainant had 15 days, or until November 12, 2019, to timely file his formal complaint. Complainant does not dispute that his formal complaint, filed on November 13, 20219, was untimely filed by one day. Complainant argues on appeal that he thought that he had an additional day to file his formal complaint because Veterans Day, a federal holiday, fell within the filing period and Complainant did not believe that this holiday was included in the 15-day limitation period. We note that if the fifteenth day had fallen on a federal holiday, then the limitation period would have been extended by one day. In this case, the federal holiday fell one day before the 15-day limitation period, and therefore, the deadline to file the formal complaint did not warrant an extension. Consequently, we find that Complainant has failed to provide adequate justification for excusing the untimely filing of the formal complaint. CONCLUSION The AJ’s order dismissing the instant formal complaint is AFFIRMED. 2021000779 3 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. 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). 2021000779 4 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 February 3, 2021 Date
