Travis J. Bishop, Jr, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionJan 15, 2009
0120073236 (E.E.O.C. Jan. 15, 2009)

0120073236

01-15-2009

Travis J. Bishop, Jr, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Travis J. Bishop, Jr,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120073236

Agency No. HS-06-TSA-001860

DECISION

Complainant filed an appeal with this Commission from the final agency

decision, dated March 25, 2007, dismissing his 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.

The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.

During the relevant time, complainant worked as a Transportation Screening

Officer at the Midway Airport in Chicago, Illinois. According to the

EEO Counselor's Report, complainant contacted the EEO office on April

20, 2006 regarding claims of racial discrimination. Informal efforts

to resolve complainant's concerns were unsuccessful.

On October 26, 2006, complainant filed the instant formal complaint.

Therein, complainant claimed that he was discriminated against when:

On February 8, 2006, during the annual recertification testing,

complainant was separated from others and tested

individually.

In its final decision, the agency dismissed the formal complaint on

the grounds of untimely EEO Counselor contact. The agency found that

complainant contacted the EEO office on April 20, 2006, regarding an

incident that occurred on February 8, 2006. According to the agency,

when questioned about the delay, complainant stated that the agency's

Office of Civil Rights and Liberties (OCRL) failed to return his

telephone calls in a time manner and he was unable to connect to a

person on the hotline number. The agency concluded that this reason

did not justify complainant missing the time limit by twenty-four days.

Further, the agency found that, in light of complainant's explanation,

his assertion that he made contact on February 13, 2006 was not credible.

Complainant filed the instant appeal.

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.

As noted above, the EEO Counselor's Report indicates that complainant

contacted the EEO Counselor on April 20, 2006, regarding the testing

incident that occurred on February 8, 2006. While complainant identifies

February 13, 2006, as the date of his initial contact in his formal

complaint, this earlier date is not supported by any statement or

evidence. Further, the EEO Counselor's Report reveals that when

questioned about his delayed contact, complainant stated that he

could not reach anyone on the hotline number and that his calls were

not returned for several days. The Commission agrees with the agency,

that complainant's explanation does not justify contact that was weeks

beyond the forty-five day time limitation.

Accordingly, the agency's decision to dismiss the complaint was proper

and is hereby 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

January 15, 2009

__________________

Date

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0120073236

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073236