Luigi B.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120142016 (E.E.O.C. Mar. 11, 2016)

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

Luigi B.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120142016

Agency No. NPS-14-0070

DECISION

Upon review, the Commission finds that the Agency’s final decision dated April 7, 2014,
dismissing Complainant’s complaint for failure to state a claim and due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. §§ 1614.107(a)(1) and (2).

In his complaint, dated December 31, 2013, Complainant alleged discrimination based on sex
(male), national origin (not identified), age (over 40), and disability (vision/high blood
pressure) when:

1. On August 11, 2012, he was notified in a threatening nature that his personal
negligence and shortcomings caused the delay in the award of a $97,000 Fire Alarm
requirement;
2. On December 5, 2012, he received a "Minimally Satisfactory" performance rating;
3. On January 14, 2013, he received two separate memoranda (direct orders)
indicating threats of his removal from federal service; and
4. On September 24, 2013, the National Park Service submitted an SF-75 to his
current agency revealing his performance evaluation rating of “2,” which is
minimally satisfactory.

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 record indicates that the Agency in its final decision dismissed claims (1), (2), and (3) due
to untimely EEO Counselor contact and claim (4) for failure to state a claim. EEOC
Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought
to the attention of the EEO Counselor within 45 days of the alleged discriminatory event, or
the effective date of an alleged discriminatory personnel action. With regard to claims (1), (2),
and (3), which occurred on and prior to January 14, 2013, the record indicates that
Complainant contacted an EEO Counselor on October 22, 2013,2 which was beyond the 45-
day time limit set by the regulations. Complainant indicated that he was going to contact an
EEO Counselor in February, 2013, but decided not to do so because he was offered a job with
the Defense Contract Management Agency. We find that Complainant, acknowledging his
untimely EEO Counselor contact, did not provide any adequate justification to warrant an
extension of the time limit for initiating EEO contact. Thus, we find that the Agency properly
dismissed claims (1), (2), and (3), due to untimely EEO Counselor contact.

With regard to claim (4), Complainant claimed that the Agency submitted an SF-75 to his
current Defense Contract Management Agency indicating his last performance evaluation
rating of minimally satisfactory. The record indicates that Complainant was successfully
transferred to the Defense Contract Management Agency and he did not indicate any harm as a
result of the evaluation he described in claim (4). After a review of the record, we find that
Complainant was not aggrieved with regard to a term, condition or privilege of his
employment as a result of the alleged incident. Thus, we find that the Agency properly
dismissed claim (4) for failure to state a claim.

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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.

2 Although the Agency indicated in its final decision that Complainant’s initial EEO Contact
concerning his complaint was made on October 23, 2013, the EEO Counselor’s report
indicates that it was made on October 22, 2013.

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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, 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 (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

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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

March 11, 2016
Date