0120152122
10-29-2015
Harley J.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harley J.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120152122
Agency No. HS-CBP-23472-2015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 12, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer at the Agency's Port of Detroit facility in Detroit, Michigan.
On December 9, 2014, Complainant contacted an EEO counselor. On March 10, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when, on October 21, 2014, he was issued an indefinite suspension.
The record shows that Complainant previously contacted an EEO counselor on April 9, 2014, regarding the ongoing misconduct investigation against Complainant. The Agency noted that the EEO Counselor advised Complainant of the filing requirements. Complainant told the EEO Counselor that he did not want to move forward with an EEO complaint at that time.
On October 21, 2014, the Agency issued Complainant a notice of indefinite suspension. The record shows that Complainant signed an acknowledgement that he received the notice. He did not file within 45-days of the date of receipt.
The Agency Decision
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency reasoned that the most recent alleged discriminatory event occurred on October 21, 2014, the date of Complainant's suspension and receipt of notice. Complainant's EEO contact was four days beyond the December 5, 2014 deadline for a timely filing.
The Agency considered Complainant's explanation that Complainant thought he had already filed an informal complaint on April 9, 2014, and that his attorney told Complainant not to make any written complaint until after his trial, because the statements could be used against him in court.
The Agency concluded that Complainant's explanation was insufficient. The Agency dismissed the complaint because Complainant was aware of the filing requirement, did not file within the 45-day period, and failed to present an adequate justification to warrant an extension of the applicable time limit.
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 record discloses that the alleged discriminatory event occurred on October 21, 2014, but Complainant did not initiate contact with an EEO Counselor until December 9, 2014, which is beyond the forty-five (45) day limitation period.
On appeal, Complainant asserts that he was aware of the 45-day day time limit, but he claims that he was subjected to a more recent discriminatory incident. He asserts that on November 5, 2014, he "learned during [his] court proceedings that the Chief [named] stated he was instructed by [another] Chief to report [Complainant] to the Joint Intake Center . . . and [the Chief] accused [Complainant] of misuse of a government computer."
The Agency maintains that Complainant knew about the Joint Intake Center Report months prior to the alleged November 5, 2014 statement, because the underlying 2011 incident was the subject of a July 24, 2014 examination of Complainant. We also find that the new claim is unrelated to the suspension at issue.
We find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 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.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 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, 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 (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 29, 2015
__________________
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.
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