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