Steven Reyes, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity CommissionOct 15, 2009
0120070449 (E.E.O.C. Oct. 15, 2009)

0120070449

10-15-2009

Steven Reyes, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.


Steven Reyes,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Transportation Security Administration),

Agency.

Appeal No. 0120070449

Hearing No. 550-2006-00073X

Agency No. TSA050600

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 14, 2006, 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely

EEO Counselor contact.

The record reflects that complainant was an unsuccessful applicant

for employment with the Transportation Security Administration (TSA).

He initiated a class complaint alleging that, based on his race (Asian)

and national origin (Filipino) he was not hired into a Security Screener

position at the San Jose International Airport. Complainant indicated

that he took a Security Screener Assessment test on or about April 1,

2005, and learned via a telephone call to a TSA 1-800 number approximately

10 days later that he had not passed the test. It is noted that the

record also reflects that the agency advised complainant via e-mail

message on April 1, 2005 that he had not passed the test.

Complainant initiated EEO counseling when an informal complaint was

mailed by complainant's attorney on May 12, 2005, to the Department

of Transportation (DOT), TSA, in Washington, D.C. It was returned to

complainant's attorney on May 27, 2005. It was noted on the envelope

"addressee unknown" and "no longer at DOT Headquarters." On May 27,

2005, complainant's attorney mailed the informal complaint to a TSA

address in Arlington, Virginia. Complainant's attorney also faxed a

copy of the informal complaint on that date but it was not successfully

transmitted until May 31, 2005.

An EEOC Administrative Judge (AJ) dismissed the complaint for untimely EEO

Counselor contact. The AJ found that complainant failed to contact an EEO

Counselor within the prescribed 45-day limitation period. Specifically,

the AJ found that complainant's information would have been received in a

timely manner had it reached the agency by May 23, 2005, but that it was

not received until May 31, 2005. The AJ found that complainant's argument

that he was not provided with the correct address for the agency failed,

as the agency was able to produce evidence showing that complainant's

attorney had received notice of TSA's correct address on two separate

occasions prior to mailing complainant's informal complaint. As such, the

AJ determined that complainant's attorney's failure to send the informal

complaint to the correct address within the time limits did not warrant

an extension of the time limit for initiating EEO Counselor contact.

The agency subsequently issued a final order fully implemented the AJ's

decision.

On appeal, complainant contends that he timely submitted his complaint

but misdirected the complaint to a former address of the agency's Office

of Civil Rights. He contends that the complaint was delayed by four

days due to the post office returning the complaint to him instead of

forwarding it to the correct address. Complainant asserts that the delay

in the returned mail should be considered a sufficient reason to warrant

an extension under 24 C.F.R. 1614.105(a)(2) or, in the alternative, the

complaint should be considered timely under the doctrine of equitable

tolling.

Upon review, the record discloses that the alleged discriminatory event

occurred on April 1, 2005, but complainant did not initiate contact with

an EEO Counselor until May 31, 2005, which is beyond the 45-day limitation

period.1 The Commission has previously held that when provided with

the proper address, filing at the wrong address does not constitute a

proper filing. See Pacheco v. United States Postal Service, EEOC Request

No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong

address despite receipt of proper instructions); Meggitt v. United

States Postal Service, EEOC Appeal No. 01A40408 (February 3, 2004)

(above principle applied to a formal complaint that was untimely filed).

We find complainant has presented no persuasive arguments or evidence

warranting an extension of the time limit for initiating EEO Counselor

contact, because the record shows that complainant's attorney had been

provided with the correct, updated address for TSA on two occasions prior

to filing the informal complaint at issue. Accordingly, the agency's

final decision dismissing complainant's complaint is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

October 15, 2009

Date

1 Complainant also raised two similar, previous incidents

of failure-to-hire occurring in October and November 2002.

The Administrative Judge noted that these events also were untimely

raised, having occurred some two and one-half years prior to complainant

initiating EEO Counselor contact.

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0120070449

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120070449