Dominique N.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120182378 (E.E.O.C. Aug. 8, 2019)

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

Dominique N.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120182378

Agency No. HSTSA238782015

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s final order dated June 11, 2018, 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. For the reasons that follow, we AFFIRM the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer (TSO) at the Agency’s Los Angeles International Airport in Los Angeles,
California. The record indicates that on December 10, 2014, the Agency proposed Complainant’s
fourteen-day suspension for misconduct related to his tardiness. Complainant responded to the
proposal, and on January 18, 2015, the Agency issued Complainant a decision suspending him for
fourteen days, between January 25, 2015, and February 7, 2015. On June 4, 2015, Complainant
filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of
race (African-American), sex (male), and color (medium to dark brown) when he was suspended
for fourteen (14) calendar days on January 18, 2015. After an investigation of his formal
complaint, Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ).

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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Subsequently, the Agency submitted a Motion to Dismiss (Motion) on December 1, 2017, to the
AJ, arguing that Complainant contacted an EEO counselor in an untimely manner. The evidence
indicated that Complainant non-lawyer representative allegedly sent an email requesting
counseling on March 3, 2015, the day before the expiration of the 45-day time limitation period.
The Agency maintained that, an extensive search of its records disclosed no evidence that the
purported March 3, 2015 was ever received, the date of the EEO counselor contact was April 23,
2015.2

On May 22, 2018, the AJ dismissed Complainant’s complaint for untimely EEO counselor contact.
Among other things, the AJ noted that the Agency provides annual Civil Rights training through
its Online Learning Center, and that between 2009 and 2014, Complainant completed said training
13 times. According to the Agency, Complainant was informed each time of the procedural
requirements of the EEO process. Additionally, on November 26, 2014, Complainant attended a
briefing where he received specific notification of his rights, and the requirement that he contact
an EEO Counselor within 45 days of the Agency’s alleged act of discrimination or the “effective
date of the personnel action.” Finally, the AJ noted that Complainant was represented in the
proceedings by a non-lawyer representative who is highly experienced in EEO matters.

CONTENTIONS ON APPEAL

Complainant did not provide a statement on appeal.

Among other things, the Agency requests that we deny the appeal and affirm its final order.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C. F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the
complainant did not 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 Commission has adopted a “reasonable suspicion” standard as opposed to
a “supportive facts” standard to determine when the 45-day time limit 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. McLouglin v. Dep’t. of the Treasury,
EEOC Request No. 05A01093 (Apr. 24, 2003). Pursuant to 29 C. F.R. § 1614.109(b), an
Administrative Judge is empowered to dismiss complaints for failure to timely contact an EEO
counselor.

EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that he or she was not notified of the time limits and was not otherwise aware
of them, that he or she did not know and reasonably should not have known that the discriminatory

2 Agency officials did indicate that other employees were able to submit requests for EEo
counseling via email on March 3, 2015.
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matter or personnel action occurred, that despite due diligence he or she was prevented by
circumstances beyond their control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission. Hathcock v. Dep’t. of the
Air Force, EEOC Appeal No. 0120093324 (Jan. 22, 2010).

On appeal, Complainant did not present arguments or evidence indicating that the AJ’s well-
reasoned decision improper and should be overturned. Accordingly, like the AJ, we find that the
Complainant did not provide an adequate justification for either extending or tolling the time
limitation period in this case.
CONCLUSION

Accordingly, the Agency’s final order 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:
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).
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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

August 8, 2019
Date