0120162247
10-03-2016
Jeramy C.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jeramy C.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120162247
Agency No. DOINPS160150
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision, dated June 1, 2016, dismissing 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.
We accept the appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Office Automation Specialist / EEO Specialist, GS-0260-09, at the Agency's Army Reserve Headquarters EEO Office in Fort McCoy, Wisconsin.
On March 7, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (mental and physical) and reprisal ("position as an EEO Specialist") when:
1. On September 2, 2015, Complainant was not selected for two positions, for which he applied under vacancy announcements MWRC-15-MP-0174 and MWRC-15-MP-0175; and
2. The EEO Specialist failed to engage him in the pre-complaint process.
The pertinent record shows that on June 30, 2015, he applied for an Administrative Support Assistant (OA) GS-0303-06 position with the National Park Service (NPS). The position was advertised under Announcement MWRC-15-MP-0174. His application was accepted and his name was placed on the certificate of eligible candidates. He was not interviewed or selected, because he was not deemed one of the top three candidates, and the Agency chose to interview only the top three candidates.
Complainant acknowledged that on September 2, 2015, he received "two disposition letters from the Midwest National Park Service (NPS) stating, with regard to each application, that 'another candidate was selected for this position." Complainant claims that the letters did not provide him with EEO contact information.
On September 9, 2015, Complainant sent an email to the Midwest NPS Human Resources Office ("SHRO") asking for a formal review of the hiring procedures and the selection process for the positions. He also informed them that he believed that special consideration was given to the other candidates, because the selecting officials already knew, or worked with, one of the candidates and Complainant asserted that this gave the other candidate an unfair advantage.
On September 11, 2015, the NPS SHRO sent Complainant an email, advising him that a determination was made to interview the top three referred candidates. On September 16, 2015, the NPS HR Specialist provided Complainant with information for filing an EEO complaint.
On September 18, 2015, Complainant filed a Freedom of Information Act (FOIA) request, in which Complainant stated his intention to file a complaint.
Complainant made EEO contact on January 6, 2016. He named, as the responsible officials, the Assistant Superintendent Isle Royale National Park (S1), and the HR specialist Central Servicing HR Office (S2). Complainant also stated that he wanted to call the FOIA Officer, as a witness, to testify that the Agency failed to provide a timely response to his FOIA request.
Between January 7, 2016 and February 10, 2016, Complainant was assisted in the processing of his EEO complaint. He states that "his issue is with the person who assisted [him] and failed to assist," because "[the Specialist] was trying to derail [his] EEO complaint rather than resolve the matter in order to protect her peers in the NPS SHRO." He faults the Specialist for her efforts and stated that she "failed to have or do the interactive process with him and never discussed his Rights and Responsibilities and did not offer Alternative Dispute Resolution to him." When the Agency offered him ADR, he declined.
Complainant made 23 claims in his formal complaint. Complainant disputes that this is a spin-off complaint. Complainant asserted that the "hiring process for this position was done incorrectly." He claimed that the Disability Program Manager's (DPM's) contact information should have been provided in the vacancy announcement. He claimed that the EEO website says "You generally have 45 days from the date of discrimination to contact an EEO counselor, but it does not say you must do so." He acknowledged that the USA JOBS provided a Reasonable Accommodation and EEO Policy statement web-link at the bottom of the job announcement, but stated "this requires an extra step to click on it." He stated that he should have been included in the "top 3" referred candidates due to his qualifications. He was a GS-09 at the time of his application, applying for a GS-6 position.
Complainant acknowledged that he received information, but stated that it was not geared to individuals with disabilities and that he felt intimidated and uncomfortable in raising his claims, because the only number to contact on the job vacancy announcement was the Midwestern Office.
Complainant conceded that he did not make timely contact with the NPS EEO Office, although the Agency provided him with the EEO contact information.
The Agency Decision
The Agency concluded that Complainant's claim should be dismissed because he failed to contact the EEO Counselor within the allotted 45-day period. The Agency noted that, using September 18, 2015 as the date on which he knew, he had 45 days, or until November 2, 2015, to contact the EEO Counselor. The Agency reasoned that when he filed a FOIA request regarding the two vacancy announcements, he demonstrated a reasonable suspicion that he had been discriminated against. Because he waited until January 6, 2016, the Agency concluded that his EEO contact was 65 days late.
With regard to claim 2, the Agency determined that this was a spin-off complaint, because it is a complaint about the processing of an existing complaint. In addition, the Agency stated that it issued a letter to the agency official responsible for the complaint processing regarding Complainant's concerns. The Agency concluded that his second claim should be dismissed for that reason.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he was unaware of the reasonable suspension rule and was waiting until he received a response to his FOIA request for adequate proof of his discrimination claim. He argued that he is "disappointed they failed to look at all the claims [he] presented" and "they made a poor decision in dismissing [his] complaint, especially since [he] clearly show[ed] a pattern of discrimination in [his] formal complaint." He asserts the EEOC regulation, and wording on the website, should be clearer and that the vacancy announcement must include the contact information for the Disability Program Manager.
ANALYSIS AND FINDINGS
Timeliness
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that the complaint of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (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 Regulations provide that the Agency or the Commission shall extend the time limits when the individual or the record shows that there existed circumstances beyond the complainant's control that prevented timely contact with an EEO counselor.
The record discloses that the alleged discriminatory event occurred on September 2, 2015, but Complainant did not initiate contact with an EEO Counselor until January 6, 2016, which is beyond the forty-five (45) day limitation period. Complainant formally filed an EEO complaint, alleging discrimination with regard to his not being interviewed and his dissatisfaction with the selection process.
In the instant case, the record is clear as to when Complainant was provided notice of his non-selections. Further, the Agency showed that Complainant was made aware of any EEO rights that he had with regard to the claims that he attempted to raise with the Deputy in October of 2012. Although he clearly put the Agency on notice of his belief that he was being discriminated against, he did not file a complaint.
The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id.
We find that Complainant has not provided a good reason to reverse the dismissal because Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Spin-Off Complaint
The EEOC regulation 29 C.F.R 1614.107(a)(8) provides for the dismissal of spin-off complaints. Complainant was challenging the adequacy of the assistance that he was provided during the application process and after he made contact with the EEO counselor. We agree that these claims were properly dismissed as spin-off complaints.
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
October 3, 2016
__________________
Date
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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