0120093414
05-13-2011
Richard A. Horn, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Richard A. Horn,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120093414
Hearing No. 510-0009-0053X
Agency No. HS-07-TSA-002395
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final action dated July 24, 2009, 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. The Commission accepts the appeal pursuant
to 29 C.F.R. § 1614.405(a). For the following reasons, the Agency’s
final order is REVERSED and REMANDED.
ISSUE PRESENTED
The issue presented before the Commission on appeal is whether the Agency
properly dismissed Complainant’s formal complaint of discrimination
for untimely filing and/or for stating the same claim already pending
or decided by the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Assistant Federal Security Director for Law Enforcement at the
Agency’s Pensacola Regional Airport facility in Pensacola, Florida.
On December 17, 2007, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(Caucasian) and age (60) when the Agency did not extend his salary offset
waiver, causing his temporary appointment to lapse on August 25, 2007.1
The Agency accepted the complaint for investigation and at the conclusion
thereof provided Complainant a copy of the report of investigation
(ROI) and notified him of his right to request a hearing before an EEOC
Administrative Judge or a final decision from the Agency based on the
investigative record. Complainant requested a hearing and his case was
forwarded to the appropriate EEOC District Office and assigned to an AJ.
The AJ assigned to the case dismissed the complaint after considering
a Motion to Dismiss filed by the Agency and Complainant’s response.
The AJ’s dismissal was based on the following set of facts: On February
7, 2007, Complainant learned that the Agency was not going to extend his
five-year salary offset beyond its expiration date. On February 22,
2007, Complainant contacted an EEO counselor to discuss the Agency’s
decision. The EEO Counselor was unable to resolve the matter and,
on May 22, 2007, informed Complainant of his right to file a formal
EEO complaint. Complainant did not do so.
On August 3, 2007, Complainant requested that the Federal Security
Director (FSD) extend his salary offset waiver for an additional two
years. On August 17, 2007, he requested that his first-line supervisor
(Supervisor) speak with the Director of the Federal Air Marshals Service
(Director) but the Supervisor refused. On August 22, 2007, Complainant
again sought EEO counseling and complained of being discriminated against
on the bases of race and age. On August 25, 2007, the Complainant’s
temporary appointment expired simultaneously with the expiration of his
five-year salary offset waiver. See ROI, at F-4. On December 3, 2007,
Complainant was informed by the EEO Counselor that she had been unable
to resolve the matter and informed him that he could file a formal EEO
complaint, which he filed on December 17, 2007.
The AJ determined that because Complainant did not file a formal complaint
within 15 days of the initial notice of his right to file a complaint,
he did not file a timely complaint and had therefore waived his right to
purse this matter within the EEO administrative process. The AJ further
determined that the reason Complainant went to the EEO Counselor the
second time was identical to the reason he visited the Counselor on
February 22, 2007, and therefore this matter should be dismissed for
stating the same claim pending before or already decided by the Agency.
CONTENTIONS ON APPEAL
Complainant contends on appeal that the AJ’s decision was factually
accurate but that the AJ erroneously considered February 9, 2007, to
be the date of the alleged discriminatory event. He further contends
that while he learned of the Agency’s decision not to extend his
salary offset waiver on February 9, 2007, his waiver did not actually
expire until August 25, 2007, making that the date of the actual
discriminatory event. The Agency argues that Complainant became aware
of the discriminatory event in February 2007, and had a viable claim
in May 2007, when the EEO Counselor informed him that he could file a
formal complaint. The Agency noted that counseling documents associated
with Complainant’s initial EEO contact indicates that he believed at
the time that the Agency’s decision was based on race and age, which
shows that he had a reasonable suspicion that the Agency’s decision may
have been discriminatory. Both parties’ contentions speak to their
respective cases-in-chief and as such will not be addressed separately but
are inherently included in the “Analysis and Findings” section below.
STANDARD OF REVIEW
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 (EEO MD-110), at Chapter 9, § VI.B. (Nov. 9, 1999).
In other words, we are free to accept or reject the AJ's, and Agency's
legal analysis. See id. at Ch. 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”).
ANALYSIS AND FINDINGS
The AJ and the Agency are essentially of the view that Complainant’s
failure to file a complaint within 15 days of receiving the May 22, 2007,
notice of right to file means that he waived his right to go forward
with this issue and his formal complaint should be dismissed as a matter
already pending before or decided by the Agency because it is based on
the same issue contained in the May 22, 2007, notice of right to file.
Complainant’s view is that the matter contained in the May 22, 2007,
notice of right to file is more akin to a proposed personnel action
than a discrete event, which he argues did not occur until August 25,
2007, the date on which the Agency’s February 9, 2007, decision not
to extend his waiver became effective.
We note that the AJ and Agency are correct that complaints which fail to
comply with the applicable limits contained in 29 C.F.R. § 1614.106,
which in turn requires the filing of a formal complaint within 15 days
of receiving the right to do so, shall be dismissed. See 29 C.F.R. §
1614.106. However, we also note that our regulations state that employees
who believe they have been discriminated against with respect to a
personnel action have 45 days from the effective date of the action to
raise that matter before an EEO counselor. See 29 C.F.R. 1614.105(a)(1).
Complainant’s claim regards a personnel matter which occurred on
August 25, 2007; that means he had 45 days from that date to contact
an EEO counselor. Here, Complainant contacted the EEO Counselor on
August 22, 2007, to discuss what at the time was an impending action
or an upcoming event. Nevertheless, he made the EEO Counselor aware of
the August 25, 2007, event before the passage of 45 days. We find that
the controlling document in this case is the notice of right to file
provided to Complainant on December 3, 2007, which makes Complainant’s
December 17, 2007, complaint timely filed. Because we have determined
that the act alleged to be discriminatory is a personnel action, we find
it unnecessary to consider the notion that Complainant waived his right
to go forward in May 22, 2007, which rendered his formal complaint a
matter already pending or decided.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
the Commission VACATES the Agency's final order and REMANDS this claim
to the Agency for action in accordance with this decision and the
Order below.
ORDER
The Agency shall submit to the Hearings Unit of the Birmingham District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The Agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The Agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the AJ shall issue a decision on the
complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall
issue a final action in accordance with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (Nov.r 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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
May 13, 2011
Date
1 Complainant retired from the federal government in 2000, and the Agency
rehired him in August 25, 2002, pursuant to a special hiring authority
under which those hired were eligible to receive a full Federal Government
retirement annuity and a Federal Government salary for a period not to
exceed five years.
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01-2009-3414
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093414