0120170998
06-08-2017
Bryon F.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryon F.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120170998
Agency No. HS-TSA-25948-2016
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 7, 2016, 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 a Lead Transportation Security Officer at the Agency's Detroit Metropolitan Airport in Detroit, Michigan.
On March 1, 2016, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, Complainant was issued a notice of right to file a formal complaint. On June 13, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), age (44), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when:
1. On July 2, 2014, management directed Complainant to perform an action that was in violation of Standard Operating Procedures.
2. On October 2, 2014, Complainant was denied the opportunity to apply for a logistics position for which he believed he was more qualified than the selectee for the position.
3. On or about December 17, 2015, Complainant was informed that management changed the rating his supervisor had given him to a lower rating.
The Agency dismissed the complaint as a whole pursuant to 29 C.F.R. �1614.107(a)(2). The Agency noted that Complainant alleged that he only found out in February 2016 that he could file a formal complaint with the Agency's EEO process. However, on the contrary, the Agency noted that Complainant had received ample training on the EEO complaint process over the years from 2007 through 2014. The training courses informed Complainant of his right to file a formal complaint and the need to raise the matter within 45 calendar days. In addition, the Agency provided copies of the EEO poster displayed in a prominent location providing information to its employees on the EEO complaint process and the 45 day time limit. The Agency held that Complainant's complaint alleged events which occurred on July 2, 2014; October 2, 2014; and December 17, 2015, while his contact was on March 1, 2016, well beyond the 45 day time limit. Therefore, the Agency dismissed the complaint at hand.
Complainant appealed asserting that he did not believe he had been subjected to discrimination with respect to claim (3) until March 25, 2016, when he learned that another coworker received a higher rating. As such, it was not until then that Complainant became aware of the discriminatory animus. The Agency asked that the Commission affirm its decision dismissing the complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states 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, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
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. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, we note that Complainant does not contest that he should have been aware of the 45 day time limit on appeal based on the Agency's posting of the EEO poster and his training. Instead, on appeal, Complainant argued that he was not aware of the alleged discrimination until March 25, 2016. We do not find his argument to be genuine based on the fact that he contacted the EEO Counselor on March 1, 2016, before the alleged awareness of the discriminatory animus. Furthermore, we find that Complainant should have been aware of the alleged claims of discrimination because they were discrete acts which each had the degree of permanence which should have triggered an employee's awareness and duty to assert his rights. See Woljan v. Envtl. Prot. Agency, EEOC Request No. 05950361 (Oct. 5, 1995). As such, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision dismissing the complaint.
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 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 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
June 8, 2017
__________________
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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