Complainant,v.Penny Pritzker, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Feb 20, 2015

0120150039 (E.E.O.C. Feb. 20, 2015)

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

Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120150039

Agency No. 54-2012-01965

DISMISSAL OF APPEAL
Complainant filed two appeals with this Commission from the Agency’s Decisions, dated April
3, 2013, and May 21, 2013, concerning his complaint of unlawful employment discrimination
in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. The record indicates that on September 10, 2012,
Complainant, formerly a Cartographer, ZP-II, with the Agency’s Survey Remote Sensing
Division, National Geodetic Survey, National Ocean Service, National Oceanic and
Atmosphere Administration, filed the instant complaint, dated August 10, 2012.

April 3, 2013 decision

:
Upon Complainant’s filing of the instant complaint, the Agency, on October 9, 2012, issued its
receipt of the notice of acceptance of a mixed case complaint for investigation. Therein, the
Agency framed the accepted claim of the complaint as whether Complainant was discriminated
against based on age (over 40), disability, and in reprisal for prior EEO activity when he was
removed from his federal service effective August 7, 2012. Therein, Complainant was also
informed to notify the Agency if he believed that the Agency incorrectly framed his claim
within a 15-day time limit. Thereafter, in November and December, 2012, Complainant
requested his complaint be amended and/or reframed to include other claims he previously
raised during his EEO counseling. On April 3, 2013, the Agency issued its final Agency
decision dismissing Complainant’s claim to amend/challenge the framing of the complaint
because he failed to do such in a timely manner. Therein, Complainant was explicitly
informed of the time limits on his right to appeal to the Commission.

0120150039

2
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. On
appeal, Complainant admits that he received the Agency’s April 3, 2013 final decision on June
17, 2013. However, his did not file his appeal until September 29, 2014, which was beyond
the 30-day time limit set by the regulations. On appeal, Complainant does not provide
adequate justification to invoke waiver or equitable tolling for filing the appeal. Even if this
was an appealable decision, we still find that Complainant’s appeal from the Agency’s April 3,
2013 decision is DISMISSED as untimely pursuant to 29 C.F.R. § 1614.403(c).

May 21, 2013 decision

:
The record also indicates that the Agency thereafter investigated the instant mixed case
complaint concerning Complainant’s August 17, 2012 removal. Upon completion of the
investigation, the Agency issued another decision on May 21, 2013, finding no discrimination
concerning the removal action as Complainant alleged. Therein, Complainant was explicitly
informed of his right to appeal the final decision to the Merit Systems Protection Board
(MSPB) and not to the Commission. Nevertheless, on September 29, 2014, Complainant
appealed the Agency’s May 21, 2013 final decision to the Commission, and not to the MSPB.
Accordingly, Complainant’s appeal from the Agency’s May 21, 2013 final decision is
DISMISSED since we have no jurisdiction concerning the subject matter. See

29 C.F.R.
§1614.302.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 request or
opposition must also include proof of service on the other party.
0120150039

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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 20, 2015