0120160277
02-04-2016
Hershel B.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hershel B.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120160277
Agency No. 2015-26289-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 18, 2015, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Field Service Representative at the FAA Memphis ATCT/TRACON Memphis International Airport in Memphis, Tennessee.
On August 28, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (regarded as alcohol dependent) when he was medically disqualified for an Air Traffic Control Specialist position on March 22, 2013 resulting in the recession of a tentative job offer, and on June 30, 2014, when the disqualification was upheld.
In order to qualify for the Air Traffic Control Specialist position he applied for, Complainant underwent a physical and mental health examination based on Agency regulatory standards specific to the position. The Agency's Southern Regional Flight Surgeon, who directed such evaluations, determined that Complainant failed to meet the Medical Qualification Standards necessary to safely perform the position. She submitted her decision in a letter to Complainant on March 22, 2013, citing a "diagnosis of alcohol dependence and occupational problems" and recommended he undergo treatment for alcoholism. Complainant disagreed with the alcoholism diagnosis and requested reconsideration. He underwent a second examination including a psychiatric evaluation, which was reviewed by the Agency's Washington, DC office. On June 30, 2014 Complainant was again denied medical certification based on alcohol dependence and occupational problems.
Complainant alleges he disagreed with the Agency's decisions, but was unaware of a potential discrimination claim until he retained legal counsel on April 23, 2015. He contacted an EEO Counselor on May 13, 2015.
The Agency dismissed Complainant's 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. �1614.107(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) 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.
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. 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. (Complainant v. United States Postal Serv. (Western Area), EEOC Appeal No. 0120120499 (April 19, 2012))
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. See Anderson v. Dep't of the Navy, EEOC Appeal No. 01A50185 (January 26, 2005), request for reconsideration denied, EEOC Request No. 05A50569 (April 6, 2005)
The Agency found that the forty-five (45) day limitation period was triggered on June 30, 2014, when its personnel action, here, a second denial of medical certification, became effective. It argued that Complainant was aware, having received both determination letters, that it defined alcoholism as a medical condition. As this medical condition was the basis for its denial of medical certification, Complainant should reasonably suspect the possibility of discrimination on the basis of disability. The Agency also argued that that even if Complainant was unaware that he could bring a discrimination complaint, April 23, 2015 - approximately 10 months after the personnel action leading to this complaint - was still too late to trigger the forty-five (45) day limitation period.
On appeal, Complainant acknowledges that he was aware of the Agency's March 22, 2013 and June 30, 2014 decisions, but at the time they were issued he did not know that alcoholism constituted a disability under Section 501 of the Rehabilitation Act; nor did he realize that being "regarded as" having a disability could be a basis for a discrimination claim. Complainant argues that due to the complex and less well known nature of "regarded as" claims, particularly concerning alcoholism, which is not traditionally viewed as a "disability," the triggering date for the forty-five (45) day limitation period, should have been April 23, 2015, when alleges he learned of his protected status, thereby developing a "reasonable suspicion" of discrimination. Were this "reasonable suspicion" date to be adopted, Complainant's initial contact with the EEO counselor on May 13, 2015 was timely. However, Complainant has failed to provide evidence that he acted with due diligence, despite the 10 month delay, sufficient to waive the forty-five (45) day limitation period.
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
February 4, 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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