1. CERTIFIED MAIL (XXX)
RETURN RECEIPT REQUESTED
Mr. DW
12345 River Drive
Washington, DC 12345
Subject: Final Agency Decision in Mr. DW v. Sally Jewell, Secretary,
U.S. Department of the Interior
Dear Mr. DW:
After careful review and analysis of your Equal Employment Opportunity (EEO) complaint and
the EEO Counselor’s Report, the U.S. Department of the Interior is taking final action on your
complaint by issuing this final decision. This Decision finds that your complaint should be
dismissed because it was untimely filed.
I. Statement of the Claim
Whether the Complainant was discriminated against and subjected to harassment based on age
(YOB: 1954) and reprisal (reporting near death incidents of two Federal employees, including
himself, and potentially one civilian) when:
a. On or about June 11, 2013 Complainant was instructed to mow wet grass, but
protested against doing so on a wet slope. Mr. S, the Responsible Management
Officer (RMO), disagreed with the Complainant’s assessment that the grass/slope
was too wet to mow and thus completely disregarded Complainant’s safety
concerns.
b. On or about July 8, 2013 Complainant was again instructed to mow another wet
area of the park. When Complainant stated it was too wet to mow, Mr. S told him
to use a weed eater instead. Thereby, effectively ignoring Complainant’s
judgment and safety concerns.
c. On or about July 9, 2013 Complainant alleges that Mr. S instructed him to mow
another area of the park. While mowing, Complainant lost control of the tractor,
slide down the slope, skidded over 30 feet, and headed towards a concrete wall
where the tractor came to rest. Complainant maintains that this was a near death
experience.
d. On or about August 8, 2013, Mr. S made false allegations regarding
Complainant’s ability to complete his duties (i.e. Mr. S said Complainant could
United States Department of the Interior
OFFICE OF THE SECRETARY
OFFICE OF CIVIL RIGHTS
Washington, DC 20240

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not carry a case of water weighing 54 pounds; Mr. S said Complainant’s shoulder
injury was going to impact Complainant’s work duties such as mowing and weed
eating.)
e. At an unspecified time after July 9, 2013, two Senior GS-12’s asked Complainant
repeatedly if and when he was going to retire.
f. At an unspecified time after July 9, 2013, the Safety Officer at the Southeast
Region Office told Complainant that if he pursued an EEO complaint, then he
would be considered a trouble maker and a coward and that he should apologize
for ever bringing it to Management’s attention.
g. In or around October 2013, Mr. S informed Complainant that he was assigned to
dig all funerals and to remain on call until the Government shutdown was over.
h. In or around the last week of October 2013, Complainant was directed to close
several shutters at the Homestead. This tasks requires the employee to be 20 feet
in the air on a ladder without harness protection, reaching 32 inches beyond the
center of the ladder, with both hands swinging a 16 ounce hammer. Complainant
states that the safety committee had deemed this task to be unsafe. Complainant
alleges that Mr. S completely disregarded Complainant’s safety concerns.
Complainant alleges that his co-worker and himself felt intimated and pressured
to complete this task.
i. In or around early December 2013, Complainant completed a routine clean-up of
the visitor center restrooms. Complainant maintains that Mr. S was not satisfied
with the cleanliness of the restrooms and purposefully pulled out a flashlight to
point out a pubic hair.
j. In or around January 2014, Complainant did not receive an award, while a co-
worker received an award for “simply doing his job.”
k. In or around February 2014, Complainant alleges that Mr. S tasked him to repair
gutter damage on a building approximately 7 to 18 feet high end to end.
Complainant informed Mr. S that getting on the roof would be a clear OSHA
violation because he cannot be on that height of a roof without harness protection.
l. In or around February 2014, Superintendent W stated she didn’t want JHA on
Wet Mowing and that she believed “Maintenance employees would take
advantage of it and use it as an excuse not to work.” Complainant states this is
contrary to Director J’ directions after the death of Mr. DB.
m. On or about March 30, 2014 Complainant was forced to retire.
II. Procedural History
Mr. DW (Complainant) was, at the relevant time, a Tractor Operator, with the Department of
Interior (DOI), National Park Service (NPS). Complainant initially contacted the EEO Office on
August 22, 2014. The initial interview was conducted on September 18, 2014. On October 6,
2014, the final interview was postponed until November 20, 2014 because the Complainant
elected to partake in Alternative Dispute Resolution (ADR). The ADR was unsuccessful. The
Notice of Final Interview (NOFI) was issued on November 20, 2014 and received by the
Complainant on November 21, 2014. The Complainant filed a formal complaint of
discrimination on December 1, 2014.

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On January 29, 2015, the Complainant signed a Settlement Agreement (SA) in this matter. The
SA went into effect on February 6, 2015, when it was signed by the park’s superintendent.
Because the parties reached a SA in December 2014, an EEO counselor’s report was not
completed at the time. A Confidential Complaint Referral from the Department of Interior’s
Office of Inspector General (DOI OIG), dated March 30, 2015, was received by the
Departmental Office of Civil Rights (OCR) on April 30, 2015. This Confidential Complaint
Referral contained a request by Complainant to nullify the SA he signed on January 29, 2015.
Because the Complainant contacted the DOI OIG regarding the SA on February 2, 2015, within
four days of signing the agreement, OCR treated the Confidential Complaint Referral as an
Alleged Breach of Settlement Claim by Complainant that was timely raised within 30 days of the
signing date.
After review, the Department of Interior, Office of Civil Rights voided the SA on June 29, 2015,
and on July 23, 2015, this case was remanded back to NPS for processing. In a letter dated July
23, 2015, NPS notified the Complainant that he must return the lump sum payment of $4500.00,
which was issued under the SA, to NPS within 30 days of notification in order to officially
reinstate his complaint. In August 20151, Complainant provided NPS with an official check in
the amount of $4500.00. Thereafter, NPS has resumed processing this case.
III. Analysis
In accordance with 29 C.F.R. § 1614.107(a)(2), an agency shall dismiss an entire complaint that
fails to comply with the applicable time limits contained in §1614.105(a)(1). EEOC Regulation
29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO
Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action. The Agency and the Equal
Employment Opportunity Commission (EEOC) are authorized to extend the 45 day time limit if
Complainant can establish that: 1) he was not notified of the time limits and was not otherwise
aware of them; 2) he did not know and reasonably should not have known that the discriminatory
matter or personnel action occurred; 3) despite due diligence, he was prevented by circumstances
beyond his control from contacting the EEO Counselor within the time limits; or 4) other reasons
exist that the Agency or the Commission consider sufficient. See 29 C.F.R. § 1614.105(a)(2).
Here, Complainant alleges discrimination based on age and reprisal when he was subjected to a
series of dangerous assignments and a lack of recognition following a near death incident on July
9, 2013. These incidents culminated into Complainant’s retirement on March 30, 2014.
However, Complainant did not initiate contact with an EEO Counselor until August 22, 2014,
which was 145 days after he retired, and well over the 45 day time limit. Unfortunately, the
counselor was unable to interview Complainant in 2014 and therefore was unable to ask him
why he filed a complaint outside of the 45 day time limit. Furthermore, the record does not
indicate how long Complainant was employed with NPS.
However, there is evidence to indicate that Complainant was sufficiently informed of the 45-day
time limit to contact an EEO Counselor regarding a discriminatory event. A document in the
Report of Counseling, titled Compliance Certification: EEO Bulletin Board Requirements
1 The check was mailed on August 12, 2015 and received by the National Park Service on August 20, 2015.

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certifies that a list of EEO documents are posted on all official bulletin boards throughout the
National Historic Site, Complainant’s duty station prior to his retirement. This document is dated
October 9, 2012 and signed by Superintendent W. The list of documents that were posted on the
bulletin boards include, but is not limited to, an Updated EEO Counselor Poster, U.S. DOI
Complaint Processing Procedures, the Secretary’s Policy on Equal Opportunity and Zero
Tolerance of Discrimination and Harassment dated July 26, 2011, and the Southeast Regional
Director’s Policy on Resolution of Informal EEO Complaints dated September 21, 2012. See
Attachment 1- EEO Bulletin Board Requirement Certification.
The mere presence or absence of posted notices does not, standing alone, determine whether the
limitations period should be tolled. Johnson v. Runyon, 47 F.3d 911, 918 (7th Cir. 1995). The
law requires that posted notices provide “employees with a ‘meaningful opportunity of becoming
aware of their rights. Clark v. Resistoflex Co., 854 F.2d. 762 (5th Cir. 1977). Thus, if the
employer discharges his duty to post such notices, then an employee is deemed to have
constructive knowledge of his rights and thus, cannot invoke equitable tolling of the filing
period. Id. at 769. See Janet R. Crippi v. Dep’t of the Army, 1997 WL 124143, at *4 (E.D. La.
Mar. 18, 1997) (Crippi had constructive knowledge of the 45 day deadline before it expired
because the EEO Manager had each of the seven bulletin boards in the main building of the
Corps contain a poster displaying EEO information and included notice of the applicable
deadline for making an informal complaint). See Rosario v. Potter, 2009 WL 3049585, *6
(S.D.N.Y. Sept. 23, 2009) (Plaintiff was unable to proffer evidence, which would create a
genuine issue of material fact, as to whether she had constructive notice of the timeliness
requirement when posters referring to the timeliness requirement were posted at Plaintiff’s
workplace. Here, tolling pursuant to the regulatory exception is not warranted). See also Dunham
v. McLaughlin Body Co, 812 F. Supp. 867, 872 (C.D. Ill. 1992) (Employer “conspicuously”
posted notice of ADEA rights on personal office bulletin boards and plaintiff had “meaningful
opportunity” to observe notices. Thus, administrative statute of limitations was not tolled under
“equitable tolling” doctrine”).
Because posters and documents detailing EEO procedures and timelines were posted on all of the
bulletin boards throughout the park prior to Complainant’s alleged issues, we find he had
meaningful opportunity to observe the EEO policies and thus had constructive knowledge of the
45 day time limit prior to initiating contact with the EEO Counselor. Here, based on the record,
management fulfilled their duty to post EEO notices and Complainant has failed to proffer
evidence, which would create a genuine issue of material fact, as to whether he had constructive
notice of the 45 day time limit for initiating EEO Counselor contact. Therefore, because
Complainant had constructive knowledge of the 45-day time limit for initiating EEO contact and
because we find no other reason for waiver, estoppel, or tolling the time frame, the complaint
must be dismissed for untimely contact with an EEO Counselor.
IV. Conclusion
After carefully considering the entire record and applying the aforementioned standards, this
complaint is dismissed in its entirety pursuant to 29 C.F.R. § 1614.107(a)(2) for failure to
comply with the applicable time limits contained in §1614.105 and §1614.106. This is the final

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decision of the U.S. Department of the Interior. If Complainant is dissatisfied with this decision,
he may exercise the following appeal rights.
APPEAL RIGHTS TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
The EEOC’s regulations at 29 C.F.R. §1614.402(a) states that an appeal of the agency’s final
order to the Equal Employment Opportunity Commission (EEOC) must be filed by an appellant
within thirty (30) days of receipt of an agency’s or Administrative Judge’s dismissal, final action,
or decision. If the Complainant is represented by an attorney of record, the 30-day time limit
shall begin to run from the date of receipt by the attorney of the notice of dismissal, final action,
or final decision without a hearing. All such appeals must be filed with the EEOC (Commission)
at the following address:
Equal Employment Opportunity Commission
Office of Federal Operations
P.O. Box 77960
Washington, D.C. 20013
As an alternative to mailing, appeals may be hand-delivered to:
Equal Employment Opportunity Commission
Office of Federal Operations
131 M Street, NE
Fourth Floor, Suite 4NW02F
Washington, DC 20507-0100
As a further alternative, appeals may be sent by fax to: (202) 663-7022.
The appeal shall be deemed filed on the day it is postmarked, or in the absence of a postmark, on
the date it is received by the EEOC.
At the time information is provided to the EEOC (to include a copy of the Notice of Appeal and
any submissions in support of the appeal), there must be a service certification that a copy of the
submission has been submitted to the U.S. Department of the Interior, Office of Civil Rights and
the date and method of service. A copy of the appeal and any submissions in support thereof
shall be forwarded to the Agency at the following address:
Office of Civil Rights
U.S. Department of the Interior
1849 C Street, N.W., Suite 4309
Washington, D.C. 20240
If the appeal is not filed within the thirty (30) calendar day time limit, the appeal may be
dismissed by the EEOC. However, the EEOC may, at its discretion, extend the time limits and
accept the appeal based upon a written statement that there was no actual notification of the time
limit, or that a timely Notice of Appeal could not be filed, due to extenuating circumstances.

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Any statement or brief in support of the appeal must be submitted to the EEOC within 30-
calendar days of filing of the Notice of Appeal. The EEOC, Office of Federal Operations,
accepts statements or briefs in support of appeals by facsimile transmittal, provided that they are
not more than ten (10) pages long. Any statement or brief in opposition to the appeal must be
submitted to the EEOC and served on the Appellant (or the attorney of record, if represented by
an attorney) within 30-calendar days of receipt of the statement or brief supporting the appeal, or
if no statement or brief supporting the appeal has been filed, within sixty (60) days of receipt of
the appeal.
It is the responsibility of the U.S. Department of the Interior to submit the entire complaint file to
the EEOC, Office of Federal Operations, within 30-calendar days of initial notification that an
appeal has been filed.
CIVIL ACTIONS
In lieu of an appeal to the Commission, you may file a civil action in an appropriate United
States District Court within 90 calendar days of receipt of the final decision.
If you file an appeal with the Commission, and you are not satisfied with the Commission's
decision, you may file a civil action in a United States District Court within 90 calendar days of
receipt of the Commission's final decision.
You may also file a civil action any time after 180 calendar days from the date of filing an appeal
with the Commission, if there has been no final decision by the Commission. If you decide to file
a civil action and are unable to afford Counsel, the Civil Rights Act gives the Court discretionary
authority to appoint Counsel without payment of fees or costs by you. The granting or denial of
your request is within the sole discretion of the Court. Your request and the civil action must be
filed within 90 days of the date the final decision is received.
If you file a civil action involving this complaint, you must specifically name the Secretary of
the Department of the Interior, SALLY JEWELL, as defendant. Failure to do so may result
in the loss of any judicial redress to which you may be entitled.
It is important to note that 29 C.F.R. §1614.409 states, “Filing of a civil action under §1614.408
or §1614.409 shall terminate Commissions processing of the appeal. If private suit is filed
subsequent to the filing of an appeal, the parties are requested to notify the Commission in
writing.”
Sincerely,
__________________________ __________________
Date
Director
Office of Civil Rights
Enclosure(s): EEOC Appeal Form