Gilbert B.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120182713 (E.E.O.C. Nov. 6, 2018)

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

Gilbert B.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120182713

Hearing No. 480-2018-00124X

Agency No. HS-TSA-00155-2017

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final order concerning a formal 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

During the period at issue, Complainant was a Transportation Security Officer at the Los
Angeles International Airport in Los Angeles, California.

On October 19, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve
his concerns were unsuccessful.

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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On February 7, 2017, Complainant filed the instant formal complaint. Complainant claimed that
the Agency subjected him to discrimination on the bases of race, sex, and color when, on or
about March 11, 2016, he was removed from Federal Service.

After an investigation, the Agency provided Complainant with a copy of the investigative file
and notice of the right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. On June 18, 2018, the AJ granted the Agency’s motion
and found that the subject claim was not timely raised with an EEO Counselor. Specifically, the
AJ determined that the alleged discriminatory incident occurred on or about March 11, 2016, but
that Complainant did not initiate EEO contact until October 19, 2016, which was beyond the 45-
day limitation period. As a result, the AJ dismissed the formal complaint pursuant to 29 C.F.R.
1614.107(a)(2). The Agency subsequently issued a final order adopting the AJ’s decision.

The instant appeal followed. Complainant, on appeal, introduces an email that he purportedly
sent to the EEO office as proof that he timely sought EEO contact for his discrimination claim.

In response, the Agency argued that Complainant’s appeal should be dismissed due to his lack of
diligence in presenting this new evidence to the AJ before the case was dismissed, and he has not
provided a legitimate reason for why the Commission should accept this new evidence for the
first time on appeal.

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 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. Department of the Navy,
EEOC Request No. 05970852 (February 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.

EEOC regulations provide that the Agency or the Commission shall extend the time limits when
the individual shows that he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the Agency or the Commission.

The alleged discriminatory event occurred on or around March 11, 2016, but Complainant did
not initiate contact with an EEO Counselor until October 19, 2016, beyond the 45-day limitation
period. Complainant had or should have had a reasonable suspicion of discrimination regarding
his claim more than 45 days prior to his initial contact with an EEO Counselor.
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We note that for the first time on appeal Complainant submits an email he claimed support his
timely EEO contact. This document was not part of the record available to the AJ when
considering the Agency’s motion for a decision without a hearing. Generally, no new evidence
will be considered on appeal absent an affirmative showing that the evidence was not reasonably
available prior to or during the investigation or during the hearing process. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch.
9, § VI.A.3 (August 5, 2015). Complainant offered no explanation why such email was not
previously available during the investigative or hearing processes. This new evidence submitted
will not be considered. The AJ properly dismissed the instant complaint for untimely EEO
Counselor contact.

The Agency’s final order implementing the AJ’s decision dismissing Complainant’s formal
complaint for the reasons stated herein 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.

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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

November 6, 2018
Date