0120100683
12-15-2011
Marc A. Robinson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Marc A. Robinson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120100683
Hearing No. 520-2008-0008X
Agency No. HS 05-TSA-002242
DECISION
On November 29, 2009, Complainant filed an appeal from the Agency’s
October 23, 2009, final order concerning his equal employment opportunity
(EEO) complaint alleging 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 deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented is whether the AJ properly dismissed Complainant’s
complaint on the grounds of untimely EEO counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Transportation Security Screener at the John F. Kennedy
International Airport in Jamaica, New York. Complainant was hired
on July 11, 2004, and was subject to a two-year probationary period.
On June 25, 2005 Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of disability (mental)
when on February 24, 2005, the Agency terminated his employment after
a Fitness for Duty exam concluded that he was unfit for duty.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. The Agency filed a Motion to Dismiss on
December 5, 2007. The Agency also filed a motion for a decision without
a hearing on February 7, 2008. Over Complainant’s objections, the AJ
assigned to the case granted the Agency’s motion for a decision without
a hearing and issued a decision without a hearing on October 5, 2009.
The AJ determined that Complainant failed to timely contact an EEO
Counselor and dismissed the complaint. The AJ further determined
that although Complainant demonstrated that he was an individual with
a disability, he failed to demonstrate that he was a qualified for
the position, with or without an accommodation. The AJ also found
that even if Complainant was qualified, the evidence showed that the
Agency’s motivation for sending him for a fitness for duty evaluation
was precipitated by incidents that occurred during his employment and
not due to it regarding Complainant as an individual with a disability.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
On appeal, Complainant argues that he established the Agency discriminated
against him on the basis of his disability when he was terminated.
The Agency does not make any arguments on appeal.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ’s legal
and factual conclusions, and the Agency’s final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an
appeal from an Agency’s final action shall be based on a de novo review
. . .”); see also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9, 1999)
(providing that both the Administrative Judge’s determination to issue
a decision without a hearing, and the decision itself, are subject to de
novo review). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate) or
reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and
legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
§ VI.A. (explaining that the de novo standard of review “requires
that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC
“review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission’s own assessment of the record and
its interpretation of the law”).
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. 29 C.F.R. § 1614.105(a)(1) In order to establish
EEO Counselor contact, an individual must contact an Agency official
logically connected to the EEO process and exhibit an intent to begin
the EEO process. Allen v. U.S. Postal Service, EEOC Request No. 05950933
(July 8, 1996). The Commission has adopted a “reasonable suspicion”
standard to determine when the limitation period is triggered under the
EEOC Regulations. See 29 C.F.R. § 1614.105(a)(2); Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). The time limit
to seek EEO counseling shall be extended when an individual shows he
was not notified of the time limit and was not otherwise aware of it.
We find that Complainant failed to establish that he timely contacted
an EEO Counselor regarding the matters raised in this case. The record
reflects that Complainant contacted an EEO Counselor on March 9, 2005.
Nothing in the record shows that during the March 9, 2005 contact, he
exhibited an intent to begin the EEO process. The “contact sheet,”
dated March 9, 2005 indicates that Complainant stated that the EEO bases
at issue were “none at this time.” Further, the contact sheet record
of that initial contact states that Complainant “will not discuss”
the reason he contacted the EEO office. We find that nothing else in
the record indicates Complainant intended to begin the EEO process at
the March 9, 2005 meeting.
The record further reveals that on March 10, 2005, the EEO office sent
Complainant an information package regarding the EEO process and included
all relevant time frames and requirements. The record reveals that
Complainant did not make any further contact with the EEO office or return
the forms until he faxed the EEO counselor documents on April 26, 2005.
Complainant did not provide any explanation as to why he delayed
submitting the forms even though he was informed of the proper time
frames by the Agency’s March 10, 2005 mailing. Accordingly, we find
that the AJ appropriately issued a decision finding that Complainant did
not timely contact an EEO counselor or provide a rationale for extending
the time frame.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the
AJ appropriately issued a decision finding that Complainant failed to
timely contact an EEO Counselor. Therefore, we AFFIRM the Agency’s
final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
__12/15/11________________
Date
1 Because of our decision above, we do not find it necessary to determine
whether the AJ correctly found, without a hearing, that the Agency did
not discriminate against Complainant when he was terminated after a
Fitness for Duty exam concluded that he was unfit for duty.
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0120100683
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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