0120073318
01-26-2009
Jacqueliyn D. Berry,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120073318
Agency No. HS 05-TSA-002071
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated November 3, 2006, dismissing her 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. The
Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.
On August 11, 2005, complainant contacted the EEO office regarding claims
of discrimination based on disability. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, complainant
filed a formal complaint alleging that she was asked to leave her post.
In its decision, the agency framed the claim as follows:
On or around September 14, 2004, complainant was removed from her
Transportation Security Screener position at George Bush Intercontinental
Airport, in Houston, Texas.
In its decision1, the agency referenced the EEOC Administrative Judge's
September 22, 2006 Order which dismissed the complaint for untimely
counselor contact. Although complainant argued that statements made
by her managers regarding a May 30, 2004 incident were false, the
AJ concluded that the September 14, 2004 removal was the basis of her
complaint. Complainant appealed the removal to an internal disciplinary
review board, which rendered a decision upholding the removal on February
22, 2005. Even accepting this most recent date, of February 22, 2005,
as the date of the discriminatory event, the AJ found complainant's
counselor contact was months late.
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. 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record indicates that complainant contacted the EEO office on August
11, 2005, regarding her removal on September 14, 2004.2 Even if the time
limit began from the point when the internal review board purportedly
upheld the removal in February 2005, the Commission agrees that
complainant's contact was well beyond the forty-five day time limitation.
Complainant has not presented any reasons for her untimely contact.
Accordingly, the agency's dismissal, pursuant to 29 C.F.R. 1614.107(a)(2),
was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 26, 2009
__________________
Date
1 The record contains a decision dated September 27, 2006, issued prior to
the AJ's decision, also dismissing the complaint for untimely counselor
contact, as well as for failure to state a claim. On November 3, 2006,
the agency wrote again to complainant, this time simply referring to
the AJ's dismissal order. Even though the agency failed to include the
proper appeal rights in the November 3, 2006 letter, the instant appeal
was filed by complainant. Consequently, the Commission shall treat the
agency's November 3, 2006 letter as its final action and address the
dismissal for untimely counselor contact.
2 We note that the Counselor's Report erroneously cited "September 12,
2005" as the date of the discriminatory event.
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0120073318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073318