0120160861
03-23-2016
Alonzo L.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alonzo L.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120160861
Agency No. 2015-26115-FAA-05
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 24, 2015, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist ("ATCS") at the Agency's Myrtle Beach Air Traffic Control Tower ("ATCT") in Myrtle Beach, South Carolina.
On May 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), and age (44) when on September 3, 2014, he was not selected for the position of Supervisory ATCS (Operations Supervisor) at the Myrtle Beach ATCT. Complainant first learned about the alleged discriminatory act from S2, his Second Level Supervisor (African-American, Male, 49) on September 22, 2014.
Complainant worked under S2, the Air Traffic Manager, for approximately sixteen (16) years. When the ATCS Supervisor position opened in May 2014, S2, who would be the selecting official, "personally encouraged" Complainant to apply, only to award the position to another candidate. As background, Complainant relates that a year earlier, S2 "personally encouraged" him to apply for a temporary supervisory position, only to award it to CW, Complainant's coworker (African-American, Male, 49). Complainant acknowledges that CW was highly qualified for the position. However, when CW said that he only took the position because S2 "talked him into it," Complainant became convinced that S2 chose CW based on his race in order to meet an alleged "diversity requirement." Despite his belief at the time that discrimination occurred, Complainant decided not to file an EEO complaint.
During their September 22, 2014 meeting, Complainant asked S2 why he was not selected. S2 suggested that next time Complainant should offer more detailed descriptions in response to questions about his social and community activities, such as church. As these questions did not relate to the position description, on November 12, 2014, Complainant submitted a Freedom of Information Act ("FOIA") request for all criteria pertaining to the ATCS Supervisor Vacancy Announcement including S2's selection letter, the best qualified list, and bid packages. Complainant received a response on December 19, 2014 that the information was no longer available. The record indicates that on an unspecified date Complainant received additional FOIA information. Complainant initiated contact with an EEO counselor on February 3, 2015.
The Agency investigated Complainant's formal complaint on the merits and provided him with a Report of Investigation. Complainant elected a Final Agency Decision on the matter. The Agency dismissed Complainant's complaint on procedural grounds, citing untimely EEO Counselor contact pursuant 29 C.F.R. � 1614.107(a)(2) and 29 C.F.R. � 1614.105(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, in pertinent part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. Under 29 C.F.R. � 1614.105(a)(1) 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 Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., Appeal No. 0120120499 (Apr. 19, 2012)
The Agency determined that Complainant became aware of the alleged discrimination on September 22, 2014, the date he first learned that he was not selected for the ATCS Supervisor position. The Agency further determined that even if Complainant lacked "reasonable suspicion" on September 22, 2014, reasonable suspicion existed before Complainant's FOIA request on November 12, 2014. This date range is well outside the 45 day limitation period to initiate contact with an EEO Counselor.
On appeal, Complainant argues reasonable suspicion of discrimination could not be raised until he became aware of the race, age, and gender of the selectee (or that the information was unavailable). This information was provided in the December 19, 2014 response to his FOIA request, and if Complainant's reasonable suspicion was based on this date, his counselor contact would be timely. In response, the Agency argues that the FOIA request itself is evidence that reasonable suspicion existed prior to November 12, 2014, and by sending it, Complainant intended to obtain facts in support of his existing suspicion. We agree with the Agency. A review of the record and Complainant's own appeal citing his suspicion of discrimination in similar circumstances a year earlier supports the Agency's characterization of the instant claim as a "continuation" of S2's prior "diversity hires."
Complainant also appears to argue that a procedural dismissal on timeliness grounds is improper. Specifically, he alleges that his complaint should be considered timely based on his communications with the EEO counselor and because an investigation was conducted on the merits of his claim. Again, we find the record supports the Agency's determination that reasonable suspicion existed between September 22, 2014 and November 12, 2014; making Complainant's initial EEO contact on February 3, 2015 untimely.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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, 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
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
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.
Carlton M. Hadden, Director
Office of Federal Operations
March 23, 2016
__________________
Date
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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