Arnulfo T,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Mar 3, 2017

0120152617 (E.E.O.C. Mar. 3, 2017)

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

Arnulfo T,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120152617

Agency No. FS-2015-00362

DISMISSAL OF APPEAL

By Notice of Appeal postmarked July 24, 2015, Complainant filed an appeal with this
Commission from the June 12, 2015 final agency decision concerning his EEO 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. For the following reasons, the
Commission DISMISSES Complainant’s appeal.

On March 30, 2015, Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination and harassment based on age (59) and race (Hispanic) when:

1. On October 10, 2014, he was notified of a proposed suspension, upon which a
decision was rendered on January 12, 2013, and he was suspended from January
25, 2015, to January 31, 2015: and
2. On unspecified dates, he was subjected to various acts of harassment, such as:
a. the removal of “lookout sup[sic] packing animals and running the lookout;”
b. attempts to exclude him from the Red Card committee;
c. “constant retaliation and disrespect to me peers.”

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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On June 12, 2015, the Agency issued a decision dismissing Complainant’s complaint. The
Agency dismissed claim (1) for raising the same matter in a previously raised grievance.
Additionally, the Agency dismissed claim (2) for failure to state a claim.

EEOC Regulation 29 C.F.R. § 1614.402 provides that appeals to the Commission must be
filed within 30 calendar days after a complainant receives notice of the Agency’s decision. On
appeal, Complainant admits that he received the Agency’s final decision on June 20, 2015.
Complainant filed his appeal postmarked July 24, 2015. The record reveals that the Agency’s
decision explicitly informed Complainant of the time limits on his right to appeal. On appeal,
Complainant contends there was a postal error and his representative did not receive the
Agency decision until July 8, 2015. However, we note as Complainant’s representative was
not an attorney, the time limit began to run upon Complainant’s receipt of the final decision,
which was June 20, 2015. Upon review, we find that Complainant fails to submit adequate
justification to invoke waiver or equitable tolling for filing the appeal.

Accordingly, the appeal is DISMISSED as untimely pursuant to 29 C.F.R. §1614.403(c).

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
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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

March 3, 2017
Date