0120131965
08-09-2013
Drew O. Parkin, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Drew O. Parkin,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120131965
Agency No. FS-2013-00152
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 25, 2013, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as an Environmental Coordinator for the Agency's Forest Service in Escalante, Utah.
On February 8, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination in reprisal for prior EEO activity when:
on an unspecified date, he was prohibited from gaining access to the public areas of his office building and reprimanded twice for doing so.
The record reflects that during the relevant period Complainant, a former Bureau of Land Management (BLM), works in an interagency office shared by the Forest Service, U.S. Park Service, and the BLM.
On March 25, 2013, the Agency issued a final decision. The Agency dismissed the instant complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency noted that Complainant alleged discrimination and harassment in reprisal for his whistleblowing activity when he was employed by the CLM. However, Complainant had not indicated that he had engaged in prior EEO activity.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be subject to retaliation for opposing any practice made unlawful by Title VII, the Agency Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under those statutes. In order to establish discrimination based on retaliation, an individual must initially be able to show that he or she engaged in prior EEO activity based on 29 C.F.R. � 1614.101(b).
A review of the formal complaint and the EEO Counselor's Report reflect that Complainant determined that the reprisal stems from his whistleblower activity (unrelated to EEO matters) when he was employed by the BLM. As reprisal was the sole basis raised, the dismissal of the instant complaint for failure to state a claim was proper.
The Agency's final decision dismissing Complainant's formal complaint is AFFIRMED.
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
August 9, 2013
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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