Taryn S.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 15, 2019

2019003884 (E.E.O.C. Aug. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Taryn S.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 2019003884

Agency No. HS-TSA-01891-2018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 29, 2019, dismissing a formal
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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Transportation Security
Officer, TSO/SV-1801/E-Band at O'Hare International Airport in Chicago, Illinois.

On June 1, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve
concerns were unsuccessful.

On October 13, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination based on race, disability, and age when:

1. On August 29, 2017, management charged Complainant with sleeping on duty;

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.
2019003884

2

2. On October 19, 2017, management issued Complainant a Letter of Proposed
Removal; and

3. On February 15, 2018, management terminated Complainant’s employment with
the Agency.

In the instant final decision, the Agency dismissed the formal complaint for untimely EEO
Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2).

This appeal followed.

ANALYSIS AND FINDINGS

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. Department
of the Navy, EEOC Request No. 05970852 (February 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 he was not notified of the time limits and was not otherwise aware of
them. that he did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented by circumstances
beyond his control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.

The Agency correctly determined that Complainant's EEO Counselor contact concerning the
instant matter was beyond the 45-day limitation period. In support of its assertions, the Agency
submitted a printout of Complainant’s training history with the Agency indicating Complainant’s
completion of the No Fear Act training courses on May 9, 2014, December 17, 2015, June 21,
2017, June 30, 2017 and July 5, 2017. The Agency stated that as part of the No Fear Act
training, it informs employees of the requisite 45-day time limit for initiating an EEO Counselor
contact. Moreover, the record indicates that Complainant first sought resolution for her concerns
by filing a complaint with the Agency’s Office of Professional Responsibility Appellate Board,
which denied her appeal on April 20, 2018.

The most recent alleged discriminatory event occurred on February 15, 2018, but Complainant
did not initiate contact with an EEO Counselor until June 1, 2018, which is beyond the forty-five
2019003884

3
day limitation period. On appeal, Complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO Counselor contact.

CONCLUSION

The Agency's final decision dismissing the formal complaint is AFFIRMED for the reason
discussed above.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).
2019003884

4
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.
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

August 15, 2019
Date