Zachery V.,1 Complainant,v.David Bernhardt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

0120180689 (E.E.O.C. Apr. 16, 2019)

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

Zachery V.,1
Complainant,

v.

David Bernhardt,
Secretary,
Department of the Interior,
Agency.

Appeal No. 0120180689

Hearing No. 461-2016-00058x

Agency No. DOI-BSEE-15-0887

DISMISSAL OF APPEAL

By Notice of Appeal sent by facsimile on July 3, 2017, Complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative
Judge (AJ)’s November 1, 2016 bench decision, which effectively became the Agency’s final
action concerning his 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

At the time of events giving rise to the complaint, Complainant worked as Petroleum Field
Engineer at the Agency’s Gulf of Mexico Region, Bureau of Safety and Environmental
Enforcement (BSEE), in New Orleans, Louisiana. On October 8, 2015, Complainant filed his
complaint alleging discrimination based on sex (male), age, race (African-American), color
(black), religion (Muslim), national origin (Sudanese), and in reprisal for prior protected EEO
activity when he was subjected to a hostile work environment concerning promotional
opportunities, training, religious accommodation, his work performance and appraisals, and
student loan repayment program participation.

Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ).

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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The AJ assigned to the matter held a hearing on October 25, 2016 and issued a bench decision
thereafter finding that Complainant had not been subjected to discrimination or reprisal as alleged.
When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the
AJ’s decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). Complainant
filed the instant appeal on July 3, 2017.

EEOC regulations provide that, where an Agency does not issue a final order within 40 days of
receipt of the AJ's decision, then the AJ's decision shall become the final action of the Agency. 29
C.F.R. § 1614. 109(i). In a Notice to the Parties, which the AJ included with the bench decision,
the AJ explicitly informed Complainant of his right to file his appeal to the Commission within 30
days of his receipt of the Agency’s final order. He was further informed of his right to file his
appeal after the conclusion of the Agency’s 40-day period for issuing a final order if the Agency
failed to issue a final order. The AJ’s bench decision specifically included a Certificate of Service
indicating that for timeliness, it was presumed that the parties received the decision via electronic
mail on November 2, 2016.

Since the Agency never issued a final order following issuance of the AJ's decision, we find that
the AJ’s decision became the Agency's final action 40 days after the Agency received the AJ’s
decision. Thus, the Commission finds that the AJ’s decision became the Agency’s final action on
December 12, 2016. Therefore, in order to be considered timely, Complainant had to file his
appeal no later than January 11, 2017, or 30 days after the AJ's decision became the Agency’s final
action. Complainant did not file the instant appeal until July 3, 2017, nearly six months beyond
the timeframe for the appeal to be considered timely.2 Complainant has not offered adequate
justification for an extension of the applicable time limit for filing his appeal.

CONCLUSION

Accordingly, Complainant's July 3, 2017 appeal is hereby dismissed.

2 The record indicates that Complainant filed the instant appeal at the same time as his appeal
concerning another complaint which was addressed in Sylvester C. v. Dep’t of the Interior, EEOC
Appeal No. 0120172370 (Oct. 23, 2018).
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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.
0120180689

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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

April 16, 2019
Date