U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jimmy C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021004833 Hearing No. 540-2020-00231X2 Agency No. HS-TSA-02334-2019 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated July 22, 2021, fully implementing the June 24, 2021 decision by the EEOC Administrative Judge, dismissing his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. 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. 2 In an April 15, 2021 order, the Administrative Judge (AJ) joined the instant case and EEOC No. 540-2021-00166X (Agency No. HS-TSA-01944-2020) for processing. While the case before us was dismissed, EEOC No. 540-2021-00166X proceeded to the discovery phase of the hearing process and is not presently before us. 2021004833 2 BACKGROUND During the relevant time, Complainant worked as a Transportation Security Officer (TSO), SV- E-00, Grade E, at the Agency’s facility in Phoenix, Arizona. Believing he was subjected to unlawful discrimination, Complainant contacted an EEO Counselor on September 12, 2019. On November 27, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), age (YOB 1959), and reprisal for prior protected EEO activity (Case No. HS-TSA-00848-2019) under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. on June 9, 2019, management issued him a Letter of Reprimand (LOR); and 2. on September 4, 2019, he submitted a complaint to management regarding harassment by a management official. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Complaint File (CF) at 132. On June 10, 2021, the Agency filed a Motion to Dismiss (MTD). The Agency argued that, with respect to claim 1, Complainant’s contact with the EEO Counselor was untimely. Further, in its MTD the Agency asserted that Complainant was not aggrieved when he observed alleged harassment as set forth in claim 2. In opposing the motion, Complainant acknowledged that claim 2 was raised not to obtain relief but “as a comparator case.” Complainant’s (Compl.) Reply at 2. He even went so far as to state that “[c]laim 2 could effectively be paraphrased into claim 1”, and requested that the AJ merge the two into a “comprehensive singular claim.” Id. On June 24, 2021, the AJ issued a decision and order granting the Agency’s MTD. CF at 14-16. Specifically, the AJ dismissed claim 1 for untimely counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The AJ reasoned that Complainant’s September 12, 2019 contact with the EEO Counselor was more than 45 days after the June 9, 2019 letter of reprimand. In the alternative, the AJ dismissed claim 1 because Complainant had opted to raise the issue in a grievance procedure that permits claims of discrimination, pursuant to 29 C.F.R. § 1614.107(a)(4). Claim 2 was dismissed for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The AJ reasoned the record was “devoid of any evidence that the exchange between one TSO and another [and Complainant’s subsequent report to management . . . was in any way related to Complainant’s age, sex, or EEO activity.” CF at 16. On July 22, 2021, the Agency issued a final order fully implementing the AJ’s decision. Complainant filed the instant appeal. 2021004833 3 CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ’s dismissal was incorrect and the case should be remanded for a hearing. He contends the Agency has not properly considered the evidence, regarding the LTSO he reported to management. He asserts the LTSO received “preferential treatment” for “more egregious” behavior, while Complainant was reprimanded. Complainant argues that that the Agency’s reliance on a “technicality” only proves how much a hearing is needed. In response, the Agency maintains that the dismissal of claim 1 was appropriate. Regarding claim 2, irrespective of Complainant’s purported intent to raise the matter as comparator evidence, the Agency argues it was properly dismissed for failure to state a claim. The Agency rejects Complainant’s argument that additional discovery is necessary to ensure a “just outcome.” Further, the Agency requests that the Commission not consider the discovery materials provided by Complainant on appeal, as they were not properly before the AJ. ANALYSIS AND FINDINGS Claim 1 - Untimely Counselor Contact 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. 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. 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. The record discloses that the alleged discriminatory event occurred on June 9, 2019, but that Complainant did not initiate contact with an EEO Counselor until September 12, 2019, well beyond the forty-five (45) day limitation period. In the response to the Agency’s MTD, Complainant contends that he did not know he was being discriminated against until he witnessed an LTSO engaging in the same behavior of which he was accused, between September 2 and 4, 2019. 2021004833 4 However, the Commission has adopted a “reasonable suspicion” standard to determine when the forty-five (45) day limitation period is triggered, which is distinguished from a “supportive facts” standard. See Norwood v. Dep’t of Agric., EEOC Appeal No. 01A45872 (Dec. 14, 2004); Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has “supporting facts” or “proof” of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken vs. U.S. Postal Serv., EEOC Request No. 0590065 (Mar. 29, 1990). Here, Complainant acknowledges that he waited until he had information that he believed was supportive of a claim of discrimination. However, we find that he should have reasonably suspected discrimination within 45 days of the issuance of the LOR. Since Complainant has not presented any sufficient justification for extending or tolling the time limit, we find that claim 1 was properly dismissed for untimely counselor contact. Claim 2 - Failure to State a Claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In the instant case, we find that Complainant did not suffer a present harm or loss with respect to a term, condition, or privilege of his employment for which there is a remedy when he observed “a disrespectful act” by LTSO towards TSO2. On appeal, Complainant acknowledges that he did not put forward this claim “for the purpose of obtaining relief/compensation for himself.” We thus find that claim 2 was properly dismissed for failure to state a claim. CONCLUSION Accordingly, the Agency’s implementation of the AJ’s final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2021004833 5 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004833 6 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 November 29, 2021 Date
