0120072016
09-05-2007
Sebastian Cruz, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Sebastian Cruz,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072016
Agency No. HS 05-TSA-00024
Hearing No. 520-2006-00040X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity
Commission (EEOC or Commission) accepts complainant's appeal from the
agency's February 28, 2007 final order concerning his equal employment
opportunity (EEO) complaint alleging 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. Complainant alleged that the agency
discriminated against him based on his national origin (Hispanic) when:
1. from approximately October 2002 through February 2003, he was denied
compensation as an acting Supervisory Transportation Security Screener,
2. in approximately February 2004, he was not promoted to the position
of Supervisory Transportation Security Screener,
3. on November 21, 2004, he was issued a written counseling/warning, and
4. in relation to the counseling/warning, complainant was charged 30
minutes Absent Without Leave (AWOL).
By correspondence dated November 18, 2005, the agency dismissed claims
1 and 2 for failure to timely initiate EEO counseling on them.1 The
agency accepted claims 3 and 4 for investigation. After a review of
the record in its entirety, including consideration of all statements
submitted on appeal, it is the decision of the EEOC to affirm the agency's
final order regarding claims 3 and 4 because the Administrative Judge's
(AJ) issuance of a decision on claims 3 and 4 without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred. The AJ's decision did not address the
procedural dismissal of claims 1 and 2.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) and .107(a)(2). The time limit to seek EEO counseling
shall be extended when an individual shows he did not know and reasonably
should not have known that the discriminatory action or personnel
action occurred. 29 C.F.R. � 1614.105(a)(2). In its November 18, 2005,
letter dismissing claims 1 and 2, the agency reasoned complainant did not
initiate contact with an EEO counselor until November 22, 2004, beyond
the 45 calendar day time limit to do so. According to the counselor's
report, complainant could not provide a reason for why he delayed
initiating EEO contact. The dismissal letter makes reference to this.
In opposition to the AJ's notice of intent to issue a decision without
a hearing, complainant argued in part that there were no EEO posters at
the facility where he worked, Logan International Airport, notifying
him of his rights. The argument was accompanied by his affidavit
stating that when the events in allegations 1 and 2 occurred, he was
unaware of his rights, and to his knowledge and memory, there was no EEO
office at the airport nor posters with rights under EEO law. On appeal,
which complainant copied to the agency, complainant in part reiterates
his argument regarding claims 1 and 2. The agency does not respond to
complainant's appeal.
There is no documentation in the case files the agency provided the
Commission showing that complainant waived his challenge to the dismissal
of claims 1 and 2. Nor does the record before us show that the AJ ruled
on the agency's dismissal of claims 1 and 2.
Complainant's affidavit raises the question of whether claims 1
and 2 were improperly dismissed, but does not resolve the matter.
Even assuming he did not know nor should have known of the 45 calendar
day time limit to initiate EEO counseling and was otherwise unaware
of his rights when the events in claims 1 and 2 occurred, he did not
initiate EEO counseling until November 22, 2004. This is eight to nine
months past the most recent event in claims 1 and 2. Complainant does
not state when he became aware of the 45 calendar day time limit to
initiate EEO counseling and other EEO rights, nor how he did so, and
the agency does not respond to complainant's contentions. Given this,
there is insufficient information in the record to rule on timeliness.
Accordingly, this matter is remanded to the EEOC hearings unit that ruled
on complainant's EEO complaint. U.S. EEOC Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 9,
Section IX.E, page 9-23 (November 9, 1999).
ORDER
The agency shall submit a request to the Hearings Unit of the EEOC's New
York District Office for a hearing on claims 1 and 2 within 30 calendar
days of the date this decision becomes final, with an accompanying copy
of the case file. Thereafter, an AJ shall process and issue a decision
on claims 1 and 2 in accordance with 29 C.F.R. � 1614.109,2 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
A copy of the agency's request for a hearing on claims 1 and 2 must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 5, 2007
__________________
Date
1 The same correspondence procedurally dismissed complainant's
claim regarding three other written counseling/warnings he
received. As complainant does not challenge the dismissal
of this claim on appeal, we do not address the matter.
2 This could include a decision on timeliness, if appropriate.
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0120072016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072016