0120140215
03-25-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency Appeal No. 0120140215 Agency No. HS-TSA-00724-2013
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency
Appeal No. 0120140215
Agency No. HS-TSA-00724-2013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 6, 2013, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's Detroit Metro Wayne County Airport in Romulus, Michigan. On April 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age (53) when:
On November 21, 2012,1 she was notified that she was not selected for either the position of Training Specialist, advertised under Vacancy Announcement DTW-12-538250 or the position of Expert Transportation Security Officer - Security Training Instructor, advertised under Vacancy Announcement DTW-12-538131.
Complainant alleges that she did not feel discriminated against until after a meeting on January 4, 2013, with her union representative and Agency management. Complainant then initiated EEO counseling on February 10, 2013.
ANALYSIS AND FINDINGS
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) & .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). 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.
The record discloses that the alleged discriminatory event occurred on November 21, 2012, but Complainant did not initiate contact with an EEO Counselor until February 10, 2013, which is beyond the forty-five (45) day limitation period.
Complainant indicated that she had an exit interview meeting about her job interviews on December 14, 2012, with the Acting Training Manager in charge of the Training Department at the DTW. Complainant contended that the Acting Training Manager kept saying to her that she was good at the job she was in and should stay there. She contended that there was a history at the DTW of older workers being bypassed for major promotions, that people joke about older workers not having good computer skills and her wearing reading glasses, and there was no mentoring process for older workers.
Complainant learned she was not selected on November 21, 2012, and had an exit interview meeting on December 14, 2012, which she considered unacceptable. Complainant has not explained why she did not have a reasonable suspicion of discrimination by November 21, 2012, or December 14, 2012, and has not explained what she learned at the January 4, 2013, meeting that triggered a reasonable suspicion of discrimination. She has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
March 25, 2014
__________________
Date
1 Complainant later clarified that the notification occurred on November 21, 2012.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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