0120073069
01-16-2009
Jessica B. Dipirro, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Jessica B. Dipirro,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120073069
Agency No. HS-06-TSA-001842
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated May 31, 2007, pertaining to her 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. The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On May 23, 2006, complainant contacted an EEO counselor. In her
"Request for Counseling" form, complainant explained that she was moved
to International Baggage in September 2005 "for a hardship because of
my special needs daughter" but that on January 20, 2006, she no longer
had her 0900 to 1730 shift.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on race1.
In its decision, the agency framed the claim as follows:
On March 19, 2006, complainant's request for a schedule change was
denied.
The agency dismissed the complaint for untimely counselor contact.
The agency reasoned that the allegedly discriminatory events, the denial
of her schedule change requests, occurred in January 2006 and March 2006.
With respect to the June 28, 2006 date cited in the formal complaint,
as the "date of most recent discriminatory event", the agency concluded
that there were no incidents identified that related to that date.
Consequently, the agency found that the forty-five day time limitation
expired on May 3, 2006, making complainant's contact untimely. When asked
why her contact was delayed, the agency noted that complainant claimed
to be unaware of the time limit. The agency, however, reasoned that
complainant herself acknowledged that EEO posters were on display at the
worksite. Therefore, the agency asserted complainant had constructive
knowledge of the 45-day time limitation and dismissed the complaint
pursuant to 29 C.F.R. 1614.107(a)(2).
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 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.
In the instant case, we agree with the agency that complainant's contact
was more than forty-five days after the alleged discriminatory events
occurred. As noted above, complainant argues that she was unaware of the
time limitation. In response, the agency contends that EEO posters were
on display at the workplace, and therefore complainant had constructive
knowledge of the time limits. While the Commission notes that the
agency has failed to provide a copy of the EEO poster or an affidavit
supporting its assertion on appeal, complainant admits that there was a
poster on display in her workplace. Furthermore, we are not persuaded
by complainant's statements submitted on appeal that the EEO poster
on display in her workplace did not contain the relevant timeframe.
Therefore, we shall impute constructive knowledge of the forty-five
day time limitation upon the complainant. See Santiago v. United States
Postal Service, EEOC Request No. 05950272 (July 6, 1995).
CONCLUSION
Accordingly, the agency's decision to dismiss the complaint 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 16, 2009
__________________
Date
1 Although it is not reflected in the formal complaint, the agency
decision also identifies the basis of "parental status" as part of the
complaint. Further, the agency notes that while discrimination based
on parental status is prohibited by executive order, it is not covered
by statutes enforced by the EEOC.
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0120073069
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073069