01A61307
04-03-2007
John C. Mayes, Sr., Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
John C. Mayes, Sr.,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200613071
Agency No. TSAF041092
Hearing No. 110-2005-00434x
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 19, 2005, 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. In his
complaint, complainant alleged that he was subjected to discrimination on
the bases of race (African-Indian), religion (Baptist), color (Black),
and reprisal for prior protected EEO activity under an EEO statute
that was unspecified in the record when on June 30, 2004, he was not
selected for the following positions: Supervisory Security Screener,
SV-009-G under Vacancy Number TSA-04-0723, and Lead Security Screener,
SV-0019 under Vacancy Number TSA-04-0722 at the Hartsfield-Jackson
International Airport in Atlanta, GA.
The record indicates that complainant sought EEO counseling regarding
his concerns on August 18, 2004. When informal efforts to resolve his
concerns were unsuccessful, he filed a formal complaint dated December
14, 2004. On August 8, 2005, complainant filed a request for a hearing
before an EEOC Administrative Judge (AJ). On November 3, 2005, in
response to complainant's request for a hearing, the agency filed a
Motion to Dismiss or alternatively, for Findings and Conclusions without
a Hearing. On November 22, 2005, the AJ granted the agency's motion and
issued an Order of Dismissal finding that complainant failed to initiate
timely contact with an EEO Counselor. Specifically, the AJ found that
complainant learned of the non-selections on June 30, 2005 but did not
contact an EEO Counselor until August 18, 2005. The agency adopted
the decision of the AJ finding that complainant's complaint should be
dismissed for untimely contact of an EEO Counselor in accordance with
29 C.F.R. � 1614.107(a)(2).
Complainant argues that he contacted the agency Ombudsman regarding his
concerns and was not given the proper contact information for the agency's
EEO office. In its Motion to Dismiss, and on appeal to the Commission,
the agency argues that complainant should have been on notice that he had
improperly initiated EEO contact because he received several envelopes
purportedly addressed to the agency's EEO office, returned to him as
undeliverable. Moreover, the agency states that complainant acknowledges
receiving orientation materials when he first began working for the agency
which included relevant counselor contact and EEO process information.
EEOC Regulation 29 C.F.R. � 1614.105 (a) (1) requires complaints of
discrimination to be brought to the attention of an EEO Counselor within
forty-five (45) days of the date alleged to be discriminatory or in the
event of a personnel action, within forty-five (45) days of the effective
date of the action. The Commission's regulations, however provide that
the time limit will be extended when the complainant shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1604.105 (a) (2).
Here, we find that in adopting the decision of the AJ, the agency
improperly dismissed complainant's complaint for untimely EEO Counselor
contact. We find that there is not sufficient evidence in the record
showing that complainant had actual or constructive notice of the time
limit for contacting an EEO Counselor. The agency failed to meet its
burden when it failed to provide a copy of an EEO poster on display at
complainant's work location or an affidavit from an agency official
regarding the display of an EEO poster. In addition, the employee
orientation material provided by the agency does not contain any reference
to the relevant 45-day time limit for initiating contact with an EEO
Counselor.2 Therefore, we find that the agency's final order dismissing
complainant's complaint for untimely EEO Counselor contact was improper.
Accordingly, for the reasons stated herein, we reverse the agency's
decision and remand the matter to the agency in accordance with the
Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Atlanta District
Office a request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the request and complaint file have been
transmitted to the Hearings Unit.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
April 3, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced number.
2 Although complainant may have been on notice that he had the wrong
address for the EEO office, we find no persuasive evidence that he had
actual or constructive notice of the actual location or telephone numbers
of the office or of the 45-day time limitation period for initiating
contact.
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2
01A61307
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120061307