Ricky S.v.Dep't of the Interior

Equal Employment Opportunity Commission

Dec 13, 2018

EEOC Appeal No. 2019000093 (E.E.O.C. Dec. 13, 2018)

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

Ricky S.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 2019000093

Agency No. DOINPS180231

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated June 8, 2018, dismissing his complaint of
unlawful employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a retired Maintenance
Worker/Seasonal Employee at the Agency’s Jewel Cave National Monument in South Dakota
and the St. Croix Scenic Riverway in Wisconsin. Complainant worked during the summers and
retired in 2014.

On March 7, 2018, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination on the basis of age2 when: (1) in or around 1988, Complainant’s supervisor
stated that Complainant was a “double dipper,” which Complainant understood to mean someone
who has two federal retirement pensions; (2) in or around 1997, Complainant’s supervisor stated

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.

2 Complainant also raised his veteran status as a basis. That basis is not covered by the laws or
regulations enforced by this Commission.
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that it was time Complainant left the park after Complainant inquired about a permanent
position; and (3) in or around 2003, the superintendent asked Complainant how old he was when
Complainant asked him for assistance in obtaining a permanent job at St. Croix Scenic
Riverway.

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The instant appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints 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 forty-five (45) days of the effective date of the action.

The record discloses that the last alleged discriminatory event occurred in 2003. Complainant
states he contacted an EEO counselor in 2003, but never heard back. He again contacted an EEO
Counselor in February 1, 2018, or fifteen years later. The Commission has consistently held that
a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches
may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028 (November
18, 2004) (finding that the doctrine of laches applied when complainant waited over two years
from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell
v. Department of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990).
The doctrine of laches is an equitable remedy under which an individual's failure to pursue
diligently his course of action could bar his claim. Complainant waited almost 15 years from
when he asserts he originally contacted an EEO counselor to follow up on his claims.
Complainant has failed to provide sufficient justification for extending or tolling the time limit.
Even if Complainant states he was not aware of the time limits for contacting an EEO counselor,
once he contacted an EEO counselor in 2003, he had a responsibility to follow up or pursue his
claims.

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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:
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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

December 13, 2018
Date