Porter H.v.Dep’t of Homeland Sec.

Equal Employment Opportunity Commission

Aug 13, 2019

EEOC Appeal No. 0120181059 (E.E.O.C. Aug. 13, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Porter H.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120181059

Hearing No. 480201600377X

Agency No. HSTSA233402015

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's January 4, 2018 Final Order concerning his EEO 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., and the Age Discrimination in Employment
Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Master Behavior Detection Officer (“MBDO”) at the Los Angeles International Airport
(“LAX”) in Los Angeles, California.

On March 29, 2015, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (Asian), sex (male), color (medium-fair brown), and
age (67) when, on or about January 31, 2015, Management forced him to use his sick and annual
leave after he was issued a Notice of Proposed Removal (“NOPR”).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On November 15, 2014, Complainant was provided with Notice of Proposed Removal
(“NOPR”) on the grounds that he was medically unfit for his position. According to the NOPR,
the Agency’s Office of the Chief Medical Officer (“OCMO”) based its determination on a left
foot deformity Complainant had since birth. At the time, Complainant had been working as a
MBDO at LAX for 6 years. The NOPR was issued by the Deputy Assistant Federal Security
Director (“D1”) (Hispanic, male, light brown, 41), and delivered by a Transportation Security
Manager (“T1”) (Caucasian, male, white, 62).

Because the NOPR was based on medical fitness, Complainant was, under Agency policy,
provided 7 days of administrative leave to pursue disability retirement, submit a job
questionnaire for open positions within the Agency that met his limitations, or respond to OCMO
with medical documentation establishing fitness for duty. Complainant, with the assistance of a
representative, chose to respond. Per the NOPR, once his administrative leave expired,
Complainant had to use his accrued annual or sick leave until the matter was resolved.

On December 21, 2014, the NOPR was rescinded after Complainant provided additional medical
documentation, which was reviewed by the Medical Review Officer in Agency Headquarters.
During a December 30, 2014 meeting, and in a January 1, 2015 email, Complainant asked D1 if
he could have the 168 hours of annual leave and 16 hours of sick leave that he exhausted while
the NOPR was pending, restored.

On January 7, 2015, D1 emailed Complainant, explaining that according to Human Resources,
the annual and sick leave he used while his NOPR decision was pending could not be restored.
D1 explained, “[Complainant] needed to use [his] leave until this matter was resolved” because
he was not eligible to come in to work. Before the NOPR was rescinded, “[Complainant was]
considered not fit for duty and pending a final decision of removal.”

On January 31, 2015, Complainant’s representative informed him that Agency’s actions related
to the sick and annual leave he used waiting for a decision on the NOPR were discriminatory.
Complainant later provided a list of individuals outside his protected classes that he alleges were
also issued NOPRs, yet did not have to exhaust their leave.

On or about February 14, 2015, Complainant initiated contact with an EEO Counselor, and the
matter was later accepted for investigation. At the conclusion of its investigation, the Agency
provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right
to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”).

Complainant requested a hearing. On December 21, 2017, over Complainant’s objection, the AJ
granted the Agency’s motion to dismiss Complainant's complaint for untimely EEO Counselor
contact, pursuant to 29 C.F.R. § 1614.107(a)(2), and remanded the matter to the Agency for a
FAD. On January 4, 2018, the Agency issued a FAD dismissing Complainant’s complaint as
untimely. The instant appeal followed.

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ANALYSIS AND FINDINGS

In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits contained in
§1614.105. 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 45 days of the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 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 45-day limitation period is triggered. See Howard v. Dep't
of the Navy, EEOC Request No. 05970852 (Feb. 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. See Complainant v. United States
Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).

The “agency always bears the burden of obtaining sufficient information to support a reasoned
determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4,
1994) (quoting Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992)).

Here, the Agency’s alleged discriminatory action (forcing Complainant to use his annual and
sick leave pending a decision on the NOPR), arose from the November 15, 2014 NOPR, a
personnel action. The 45-day limitation period was triggered on November 23, 2014, when
Complainant’s 7 days of administrative leave provided by the NOPR ran out, and he was
effectively required to use his annual and sick leave. Therefore, the last day for Complainant to
timely contact an EEO Counselor was January 7, 2015. Complainant, however, did not contact
an EEO Counselor until February 14, 2015.

We have previously accepted complaints raised with an EEO counselor over 45 days after an
allegedly discriminatory personnel action as timely, when the complainant can demonstrate that
he or she first developed reasonable suspicion within 45 days of the initial contact. Typically, a
complainant will establish reasonable suspicion by identifying a similarly situated individual
outside his or her protected class (“comparator employee”) who received favorable treatment.
See Duplessis v. United States Postal Serv., EEOC Appeal No. 01A52490 (Jun. 15, 2005)
(reasonable suspicion did not arise until the complainant returned to work, after being placed in a
non-duty/non-pay status for wearing a surgical shoe, and noticed another employee wearing the
same shoe on the work room floor); Hill v. Dep’t of the Air Force, EEOC Appeal No. 01A62164
(Jun. 26, 2006) (complainant received an alleged discriminatory performance appraisal in
February 2004, and was told the rating would not be changed; however, in September 2005, she
learned that management changed the evaluations of several co-workers; thus, her October 6,
2005 EEO contact was timely); see also Wes S. v. United States Postal Serv., EEOC Appeal No.
0120161214 (Feb. 17, 2017); Lampi v. Dep’t of Transportation, EEOC Appeal No. 01A62261
(Jun. 16, 2006); Blair v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A55288 (Dec. 21,
2005); Bingham v. United States Postal Serv., EEOC Appeal No. 01A50221 (Feb. 25, 2005).
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According to Complainant, his initial EEO contact was timely based on the date he developed
reasonable suspicion, January 31, 2015. He explains that the triggering event for the reasonable
suspicion was a conversation with his representative. Complainant also provides a list of
employees that he identifies as comparators. However, Complainant does not link his awareness
of the comparators, or any other event that would give rise to reasonable suspicion, to the
January 31, 2015 conversation.

Contrary to Complainant’s appellate argument, the 45-day limitation period provided in our
regulations cannot be circumvented by simply offering a later date for when reasonable suspicion
arose. Complainant must also explain why the proffered date is “reasonable” by offering enough
information for a determination on whether a reasonable person would have suspected
discrimination before that date. As Complainant failed to explain why he could not have
reasonably suspected discrimination before January 31, 2015, we find his complaint was
properly dismissed for untimely contact with an EEO counselor.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
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(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 13, 2019
Date