Johane Tillery, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionJan 15, 2009
0120073142 (E.E.O.C. Jan. 15, 2009)

0120073142

01-15-2009

Johane Tillery, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Johane Tillery,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120073142

Agency No. HS-06-TSA-003509

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision, dated June 6, 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.

Believing that she was subjected to reprisal and sex discrimination,

complainant contacted an EEO Counselor on July 12, 2006. Informal efforts

to resolve complainant's concerns were unsuccessful. On December 1,

2006 , complainant filed the instant formal complaint.

In the instant final decision, the agency framed the claim as follows:

On April 26, 2006, complainant's request for a transfer to the Tucson

International Airport was denied.1

The agency dismissed the formal complaint on the grounds of untimely

EEO Counselor contact. The agency reasoned that complainant identified

April 26, 2006 as the date of the most recent event, and therefore

the forty-five day time limit ended on June 10, 2006. Consequently,

the agency found that complainant's contact was thirty-two days late.

According to the agency, complainant did not provide a reason for her

untimely EEO Counselor contact nor did she show that she was unaware

of the time limitation. Complainant filed the instant appeal.

On appeal, complainant, through her attorney, argues that the agency's

dismissal is erroneous for two reasons. First, complainant asserts that

April 26, 2006, is not the date of the most recent event. Instead,

"[t]he final act of retaliation occurred on June 7, 2006, when the

agency advised [complainant] that she was no longer employed." Second,

complainant contends that she complained of the retaliation "long before"

the June 10, 2006 deadline identified by the agency.

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.

In the instant case, pre-complaint paperwork reveals that complainant

believed that on April 26, 2006 she was denied a transfer, due to the

false information provided by West Palm Beach officials. However,

the Counselor's Report describes more. The report explains that on

March 8, 2006, complainant requested a transfer, which was subjected by

Human Resources (HR) on April 20, 2006. A few days later, on April 26,

2006, the request was denied. While no additional dates were given,

the report notes that complainant submitted a second request which

was denied due to insufficient information. As a result of the denied

transfer, complainant was purportedly forced to resign. However, the

constructive discharge claim is not reflected in the formal complaint,

which only describes sexual harassment from December 2005 and the denial

of a transfer on April 26, 2006. Consequently, the Commission finds

that the allegedly discriminatory event occurred on April 26, 2006.

As for the date of her initial contact, the Counselor's Report shows that

complainant made contact on July 12, 2006. While complainant attempts to

show on appeal that her contact was earlier and timely, the Commission

is not persuaded. In support of her argument, complainant submits a

letter dated June 2, 2006 to the Office of Special Counsel describing

"Possible Personnel Practices". We do not find this is sufficient to

constitute initial contact with the EEO office. Similarly, the record

also contains a May 30, 2006 letter to the "Federal Security Director",

wherein complainant describes harassment from December 2005, the denial

of a transfer in April 2006, and the alleged forced resignation.

This letter, to the security director, is insufficient to begin the

EEO process.

Therefore, we find that complainant waited beyond the forty-five day

time limitation to contact an EEO Counselor regarding the denial of

her transfer. The agency's decision to dismiss the complaint, pursuant

to 29 C.F.R. 1614.107(a)(2), was proper.

Accordingly, the agency's decision 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 15, 2009

__________________

Date

1 The Commission notes that in separate portions of the final agency

decision, the agency describes the alleged discriminatory event as

occurring on April 24, 2006, as well as on April 26, 2006. This two-day

disparity, however, does not affect the ultimate disposition of this

case.

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0120073142

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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