0120172176
10-31-2017
Detra S,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Detra S,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120172176
Agency No. 201727281FAA02
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 17, 2017, dismissing her 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Airports Compliance Program Manager at the Agency's Southern Regional Office located in College Park, Georgia. On February 6, 2017, Complainant initiated EEO contact alleging that the Agency discriminated against her on the basis of sex (female) when it required at least one year of "specialized experience" ("experience conducting onsite airport financial reviews to determine compliance with Federal laws, policies, and grant assurances regarding the lawful use of airport revenue") as part of the vacancy announcement for Supervisory Airport Compliance Specialist, # AWA-ARP-17-0004CH-50792.
Complainant stated that, on December 1, 2016, she contacted the Executive Officer for Airports Division (S1) to inquire about the specialized experience requirement. Complainant stated she later learned that another well qualified female was not referred or interviewed for the position so she initiated EEO contact. Complainant stated that the level of specialized experience required was unnecessary and that a knowledge requirement would have been a better option. She stated that the specialized experience had a disparate impact on women.
On March 17, 2017, Complainant filed a formal complaint reiterating the above allegation. In her complaint summary, Complainant stated that S1's response avoided her "primary concern about the discriminatory nature of the [specialized experience] requirement."
In a letter dated April 17, 2017, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency found that Complainant suspected discrimination on December 1, 2016 when she contacted S1, and she had 45 days from that date to initiate EEO contact. The instant appeal from Complainant followed.
On appeal, Complainant stated that she originally thought the Agency sought to exclude her from applying with the specialized experience requirement, but realized later that was not the case when another qualified female was not referred.2 Complainant did not apply for the position because she could not certify that she possessed the specialized experience required.
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. Dep't 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 record discloses that Complainant had a reasonable suspicion of discrimination on December 1, 2016 when she contacted the Executive Officer for Airports Division, S1, to inquire about the specialized experience requirement. Complainant acknowledged that she did not initiate EEO contact until much later. The Agency states that Complainant initiated EEO contact on February 6, 2017, which is beyond the forty-five (45) 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. Further, as Complainant did not apply for the position, her complaint fails to state a claim. See Davis v. General Services Administration, EEOC Appeal No. 01A62953 (August 16, 2006).
CONCLUSION
We AFFIRM the Agency's final decision dismissing Complainant's complaint.
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).
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
October 31, 2017
__________________
Date
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.
2 We note that the record shows that a female was selected for the supervisory position effective March 20, 2017. Complainant alleged that the selectee does not possess the specialized experience about which she expressed concern.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172176
4
0120172176