0120143228
02-19-2015
Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120143228
Hearing No. 530-2014-00026X
Agency No. NPS-12-0227
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated August 20, 2014, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a System Administrator at the Agency's National Park Service, Independence National Historical Park, in Philadelphia, Pennsylvania.1
On May 1, 2012, Complainant contacted the EEO Counselor regarding his claim of discrimination. When the matter was not resolved informally, he was issued a notice of right to file a formal complaint. On June 5, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), religion (Methodist), color (Black), age, and reprisal for prior "grievance activity" when:
1. On March 2, 2012, Complainant received a Letter of Counseling for failing to finish any of the three initial tasks the Acting Administrative Officer assigned him on February 24, 2012.
2. On March 8, 2012, he was issued a Letter of Reprimand for delay in following the Acting Administrative Officer's direction to complete assigned work.
The Agency accepted the matter for investigation. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 20, 2014, the Agency moved to dismiss the compliant. In its motion, the Agency noted that Complainant was issued the disciplinary actions on March 2 and 8, 2012. He did not contact the EEO Counselor until May 1, 2012, beyond the 45 day time limit. The Agency indicated that Complainant had filed a grievance on the Letters. The grievance was denied on March 30, 2012. Following the grievance procedure, Complainant contacted the EEO Counselor to pursue the matters through the EEO process. The Agency also asserted that Complainant should have been aware of the 45 day time limit. The Agency provided, in support of this assertion, a "Certification of Posting" dated February 15, 2012, and signed by an EEO Officer and the Acting Administrative Officer. The Certification stated that there was a poster located at the Independence National Historical Park providing applicants and employees of the Park notice of the 45 day deadline for contacting an EEO Counselor. As such, the Agency argued that the complaint should be dismissed pursuant to 29 C.F.R. �1614.107(a)(2) for failure to contact the EEO Counselor in a timely manner.
On May 16, 2014, the AJ issued a decision dismissing the complaint as a whole pursuant to 29 C.F.R. �1614.107(a)(2). The AJ noted that Complainant was issued the Letters on March 2 and March 8, 2012. He did not contact the EEO Counselor until May 1, 2012, beyond the 45 day time limit. Further, the AJ indicated that Complainant did not establish that he was not aware of the 45 day time limit. Therefore, the AJ dismissed the matter pursuant to 29 C.F.R. �1614.107(a)(2). The Agency adopted the AJ's dismissal by Final Order dated August 20, 2014.
Complainant appealed the dismissal action. On appeal, Complainant indicated that he had filed a grievance on the Letters and the final action by the Agency did not occur until March 29, 2012, when the grievance was denied. As such, he claimed that his contact was made in a timely manner. In addition, Complainant argued that he was not aware of the timeframe until he signed the rights and responsibilities document at the EEO Office on May 1, 2012.
The Agency requested that the Commission affirm its decision to adopt the AJ's dismissal of the complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
In the case at hand, Complainant was issued the Letters on March 2, 2012 and March 8, 2012. He did not contact the EEO Counselor until May 1, 2012, after the 45 day time limit had expired. Complainant argued that he was not aware of the timeframe. We are not persuaded by Complainant's argument for the Agency has provided evidence that Complainant should have been aware of the 45 day time limit based on its posting of information on the EEO process in the workplace. Furthermore, Complainant claimed that he was timely in his contact for he had filed a grievance. Again, we are not persuaded by Complainant's claim. We note, however that the use of the negotiated grievance procedure does not toll the time limit for contacting an EEO Counselor. Schermerhorn v. U.S. Postal Serv., EEOC Request No. 05940729 (Feb. 10, 1995). Therefore, we find that Complainant's EEO contact on May 1, 2012, was untimely. Complainant has not provided evidence to allow for an extension of the time limit. Accordingly, we conclude that the dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision adopting the AJ's dismissal of the complaint.
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.
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
February 19, 2015
__________________
Date
1 The Agency indicated that Complainant retired from federal service effective December 31, 2012.
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0120143228
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120143228