Norbert K.,1 Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 24, 2017

0120171025 (E.E.O.C. Mar. 24, 2017)

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

Norbert K.,1
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120171025

Agency No. 15-67004-00757

DISMISSAL OF APPEAL

By Notice of Appeal postmarked January 18, 2017, Complainant filed an appeal with this
Commission from the October 6, 2016 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 6, 2015, Complainant filed a formal complaint, which was subsequently amended,
alleging the Agency subjected him to discrimination on the bases of his race, age, and in
reprisal (adverse/negative reviews for career enhancing opportunities) when:

a. On September 25, 2012, Complainant’s first-level supervisor (S1) asked for a
volunteer for Safety Representative and Complainant volunteered; however, S1
gave the opportunity to a Coworker (CW).
b. On June 8, 2014, and June 22, 2014, S1 asked for volunteers to become DPAS
Representative and the billet was given to CW.
c. On December 17, 2014, Complainant applied for the New Leader Program (NLP)
and his first-line supervisor (S1) provided a less than complimentary evaluation.

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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d. On January 29, 2015, Complainant asked for an opportunity to be placed on the
vacant Quality Assurance Specialist billet, and S1 told Complainant that his
coworker (CW) would stay on until the position was filled.
e. On July 13, 2015, Complainant became aware that he was not selected for the
position of Quality Assurance Specialist, GS-1910-09.

On October 6, 2016, the Agency issued a final decision on Complainant’s complaint. The
Agency dismissed claims (a) and (b) for untimely EEO Counselor contact. The Agency noted
there was no evidence Complainant participated in prior EEO activity. Thus, the Agency
dismissed Complainant’s basis of reprisal for failure to state a claim. Additionally, the Agency
found no discrimination on the remaining claims.

By regulation, a complainant’s appeal must be filed within 30 days of receipt of an agency’s
final action. 29 C.F.R. § 1614.402(a). In this case, the Agency’s final decision contained a
notice that “[f]or timeliness purposes, it will be presumed that this notice was received within
five calendar days after it was sent.” Additionally, we note that the record reveals that the
final decision was sent to Complainant’s address of record (a post office box) on October 7,
2016, via Certified Mail Receipt No. 7101 4579 9290 0543 9991. The Product & Tracking
Information in the record reveals that Tracking Number 7101 4579 9290 0543 9991 was
picked up at the post office on October 17, 2016. A review of the final decision reveals that
the Agency properly advised Complainant that he had 30 calendar days after receipt of its final
decision to file his appeal with the Commission. Complainant did not file his appeal until
January 18, 2017. Upon review, we find Complainant’s appeal was filed beyond the 30-day
time limit. Complainant has not offered adequate justification for an extension of the
applicable time limit for filing his appeal. Accordingly, Complainant's appeal is DISMISSED
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
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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
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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 24, 2017
Date