0120160757
03-03-2016
Everette C.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (U.S. Marshals Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Everette C.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 0120160757
Agency No. USM201500088
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 22, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a contract employee with the Agency through AKAL Security, Inc. working as a Court Security Officer ("CSO") at the U.S. District Court for the Western District of Tennessee in Memphis, Tennessee.
On November 17, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when, on January 28, 2014, it caused AKAL Security to terminate his employment. Specifically, Complainant was terminated after he failed "mock intrusion test," allowing a woman to enter the courthouse with a knife hidden in her hair. (She claimed the hand-held metel detector he was using was beeping due to a metal plate in her head from surgery). Complainant alleged that AKAL Security recommended the Agency suspend him for 10 days, but the Agency recommended Complainant's termination, so AKAL Security complied.
In late March or early April 2014, Complainant contacted the U.S. Equal Employment Opportunity Commission ("EEOC") and was informed that the proper contact to file a complaint of employment discrimination against a federal agency was with the agency's EEO office. He was also informed of the deadline to contact an EEO Counselow. Complainant did not take further action until October 30, 2014. His union representative informed him that an attorney (Complainant's current representative) who was representing other CSOs may be interested in representing Complainant. The Union Representative provided Complainant with the information for bringing a claim of discrimination to the Agency's EEO Office and Complainant pursued the instant complaint.
The Agency dimissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
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.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the 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 her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission. Where, as here, there is an issue of timeliness, the "agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. See Guy v. Dep't of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. DOD, EEOC Request No. 05920506 (August 25, 1992)).
Complainant's proffered explanation for his delayed contact of an EEO Counselor was that he was unaware of the forty-five (45) day limitation period at the time of the alleged discriminatory act, and he did not know who to contact. The Agency does not dispute whether Complainant was aware of the time limit at the time of the event; but argues that Complainant reasonably should have known about the time limit no later than April 15, 2014. To satisfy its burden, the Agency cites Complainant's own account of a conversation with an EEOC employee in late March or early April of 2014. Even with this later start date, Complainant's initial EEO contact date of October 30, 2014 is still untimely.
On Appeal, Complainant argues that even though he became aware of the limitation in April or March 2014, he was unaware that he could still file his complaint. He alleges that the EEOC employee he spoke with informed him that based on the date of the alleged discriminatory act, the deadline to file had passed. Complainant alleges that he did not take any action because did not think he could over forty-five (45) days after the date of the alleged discriminatory act. Complainant only became aware of this once he spoke with his Union Representative, on October 30, 2014.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 (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
March 3, 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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