0120182447
09-18-2018
George M,1 Complainant, v. Kirstjen M. Nielsen, 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
George M,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120182447
Hearing No. 440-2016-00156X2
Agency No. HS-TSA-23937-2015
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 7, 2018, implementing the Equal Employment Opportunity Commission Administrative Judge's decision 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 worked as a Transportation Security Officer at the Agency's Minneapolis International Airport facility in Minneapolis, Minnesota.
On December 23, 2014, Complainant had a pre-decisional discussion with management concerning an event which occurred involving screening of a gun case. On January 10, 2015, Complainant was issued a three-day suspension for the incident. Complainant filed a grievance on the suspension on January 12, 2015. Complainant served the suspension on January 20, 23, and 24, 2015. Subsequently, Complainant's grievance was denied on February 13, 2015. Complainant retired from the Agency effective April 30, 2015.
On May 11, 2015, Complainant contacted the EEO Counselor, and later filed a formal complaint, alleging he was subjected to unlawful retaliation for engaging in prior EEO complaint activity when, on March 27, 2015, management issued him the three-day suspension served in January 2015. This claim shall be referred to as claim (1).
The Agency accepted the complaint for investigation. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On August 7, 2016, Complainant filed a motion to amend his complaint to include an additional claim of discrimination in which Complainant asserted that he was subjected to unlawful retaliation when, on April 30, 2015, he was constructively discharged from his position as a result of suspension. This claim was designated as claim (2). On October 19, 2016, the AJ issued his order granting the motion.
Subsequently, on July 31, 2017, the Agency filed a motion to dismiss the matter for untimely EEO Counselor contact. Complainant responded the Agency's motion on August 16, 2017. On May 23, 2018, the AJ issued his decision dismissing claim (1), pursuant to 29 C.F.R. �1614.107(a)(2), for untimely EEO counseling contact. The AJ held that Complainant was aware of the timeframes, noting relevant training he had been provided and Complainant's prior EEO complaints. The AJ noted that the effective date of the suspension was in January 2015, when he served the suspension. However, Complainant contacted the EEO Counselor on May 11, 2015, well beyond the 45-day time limit. Complainant indicated that the delay in contacting the EEO Counselor was due to his grievance and efforts to address the suspension with the Agency. The AJ found that the attempts to resolve the matter did not toll the 45-day time limit and claim (1) should be dismissed.
Then, the AJ noted that claim (1) was the "jurisdictional predicate" for claim (2). He indicated that claim (2) was added to claim (1) at the hearing stage. Therefore, because claim (1) was untimely, the AJ found that there was no other timely claim with which to link claim (2) for the hearing. Accordingly, the AJ found that claim (2) "must likewise be dismissed."
The Agency implemented the AJ's decision. This appeal followed. Complainant submitted no argument on appeal.
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.
Upon review of the record, we find that the AJ correctly held, with regard to claim (1) concerning the imposition of the suspension, that the EEO counselor contact occurred outside of the 45-day time limit. There is ample undisputed evidence in the record that Complainant knew or should have known of the 45-day limitation period. Further, Complainant's attempts to resolve the matter through the grievance does not toll the time frames. Schermerhorn v. U.S. Postal Serv., EEOC Request No. 05940729 (Feb. 10, 1995). Therefore, we find that the dismissal of claim (1) was appropriate.
The AJ also allowed for the amendment of the complaint to include claim (2). A fair reading of claim (2) indicates that Complainant alleged that due to the imposition of the suspension, he was constructively discharged (forced resignation) from the Agency. As the AJ correctly noted, Complainant may seek to amend a complaint without regard to the 45-day limitation period, if such amendment concerns matters "like or related" to the original claim. See Cadag v. United States Postal Service, EEOC Request No. 0520120189 (May 10, 2013). On this basis, the AJ granted Complainant's motion to amend.
Under the facts of this case, however, once Complainant's claim concerning the suspension was dismissed, the sole factual basis for Complainant's constructive discharge claim (the suspension) was no longer available to support claim (2). As the AJ correctly determined, adjudication of claim (1) was the critical predicate to adjudicating Complainant's constructive discharge claim. A fair reading of claim (2) indicates no other event was alleged by Complainant to support his claim of an unlawful constructive discharge. In essence, the two claims have merged into one - the constructive discharge cannot be established without adjudicating the challenge to the suspension. As such, we conclude that the AJ was correct that Complainant has failed to state a viable claim of constructive discharge as the underlying action (the suspension) was properly dismissed as untimely raised.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of the complaint, as amended.
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).
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
September 18, 2018
__________________
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.
2 We note that documents in the record contain two different EEOC Hearing Numbers, namely, 440-2016-00156X and 443-2016-00156X. However, a review of the Commission's administrative records, we note that the hearing number in our records is EEOC Hearing No. 440-2016-00156X.
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