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EEOC holds Agency incorrectly filed appeal and AJ’s Decision is affirmed. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of sex (female and pregnancy) and prior protected EEO activity (contacting an EEO Counselor to initiate the complaint) when she was not selected for a promotion, when she was given an unjustifiable performance review, and when her supervisor cautioned her about filing an EEO complaint. Complainant timely requested a hearing in before an Administrative Judge (AJ) where the AJ issued a decision finding Complainant was subjected to per se reprisal and discrimination based on reprisal. As relief, the AJ ordered the Agency to post a notice, provide employees with EEO training, and $22,500 in damages among other things. The AJ’s certificate of service informed the parties that the Commission presumed receipt within five calendar days and also emailed copies of the decision to the Complainant and Agency representatives. The Agency issued a final order rejecting the AJ’s decision and simultaneously filed an appeal; however, the Agency sent a copy of its final order and notice of appeal to the AJ instead of to the EEO’s Office of Federal Operations (OFO).

On appeal, the OFO noted that the Commission’s regulations state if the Agency fails to do anything within 40 days of the AJ’s decision, the AJ’s decision gets adopted as the final action of the agency. The OFO further noted that other than the Agency’s assertion that it did not receive the final decision within 5 days, the Agency offered no supporting evidence to support such a claim. Additionally, the inadequate justification for the Agency’s failure to correctly file failed to persuade the OFO, and as such the OFO held the Agency’s final order and appeal were untimely and the AJ’s decision became the final action of the Agency at the expiration of the 40-day time limit to file an appeal.

Ashlee P. v. Social Security Administration, EEOC Appeal No. 0720180016 (Dec. 11, 2018) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0720180016.pdf

Attorney Kirk J. Angel represents federal employees nationwide.