0120090831
05-19-2009
Joanna Chang, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Joanna Chang,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120090831
Agency No. HS-07-TSA-002150
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order dated November 6, 2008, implementing the dismissal by an
Administrative Judge (AJ) of her 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.
Complainant was a Transportation Security Administration (TSA) Screener
at Los Angeles International Airport (LAX) when she resigned while being
investigated by the agency on suspicion of having stolen passenger
property at the airport. Later, she was charged criminally by the
City Attorney, along with several other screeners who allegedly stole
passenger property while on duty at LAX.
On July 3, 2007, complainant initiated EEO Counselor contact, and
claimed that she was the victim of unlawful employment discrimination on
the bases of race and in reprisal for prior protected activity when on
February 5, 2007, she was subjected to interrogation and forced to resign.
Informal efforts to resolve her concerns were unsuccessful.
On September 13, 2007, complainant filed the instant formal complaint. As
the agency did not complete the investigation within 180 days of the
filing of the formal complaint, complainant requested a hearing before
an AJ. The agency filed a Motion to Dismiss the complaint on the grounds
that complainant failed to initiate counseling on a timely fashion.
On September 17, 2008, the AJ dismissed the complaint formal untimely
EEO Counselor contact.
On November 6, 2008, the agency implemented the A J's decision dismissing
the complaint.
EEOC Regulation 29 C.F.R.� 1614. 105 (a) (1) provides that an aggrieved
person who believes that he/she has been discriminated against on the
basis of race, color, religion, sex, national origin, age or disability
must initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory or in the case of personn4el action,
within 45 days of the effective date of the action.
Section 1614.107 (a) (2) provides that the agency shall dismiss an entire
complaint that fails to comply with applicable time limits contained in
�� 1614.105, 1614,106 and 16164.204(c).
The record discloses that the alleged discriminatory event occurred on
February 5, 2007, but that complainant did not initiate contact with an
EEO Counselor until July 3, 2007, which is beyond the forty-five (45)
day limitation period.
On appeal, complainant has presented a detailed discussion regarding
the circumstances that led to her separation from agency employment.
However, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact, i.e., that she developed a reasonable suspicion of unlawful
employment discrimination with the 45 days that preceded her initial
EEO contact, or that she was unaware of the time limitation for pursuing
the EEO complaint process.
Accordingly, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the
grounds of untimely EEO Counselor contact and the agency's final order
implementing the AJ's dismissal is 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
May 19, 2009
__________________
Date
2
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090831