[Redacted], Ronny S., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Mar 30, 2022

Appeal No. 2021001223 (E.E.O.C. Mar. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ronny S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2021001223 Hearing No. 410-2020-00221X Agency No. DOT-2019-28278-FAA-03 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 4, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the relevant time, Complainant was employed by the Agency as an Air Traffic Control Specialist, AT-2152-KH, FAA Philadelphia, in Philadelphia, Pennsylvania. On February 13, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were not successful. 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. 2021001223 2 On May 10, 2019, Complainant filed a formal complaint alleging discrimination by the Agency based on race (Caucasian), color (white), disability, and age when, on December 11, 2018, he learned that he was not selected for the position of Traffic Management Coordinator (TMC), AT LH, at Atlanta Air Traffic Control Tower (ATL) Vacancy No. ASO-ATO-18-A147-57474 After the Agency conducted an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On November 3, 2020, the AJ dismissed the formal complaint for untimely EEO counselor contact. The AJ determined that Complainant initiated EEO counselor contact on February 13, 2019, which the AJ found was beyond the 45-day limitation period required by 29 C.F.R. § 1614.105(a)(1), from when he learned he was not selected for the subject position. Thereafter, the Agency issued the instant final order implementing the AJ’s dismissal. The instant appeal followed. The regulation at 29 C.F.R. § 1614.107(a)(2) states, in relevant period, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. Under 29 C.F.R. § 1614.105(a)(1), an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, the effective date of an alleged discriminatory personnel action or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The record supports the AJ’s recitation of events leading to the initiation of EEO Counselor contact, delineated as follows. The AJ found that the Agency had asserted that Complainant was officially notified of the non-selection on October 31, 2018. Complainant does not challenge this assertion, but instead argues that the forty-five-day limitation period should not begin until he received official notification of the identity of the selectees for the subject position. The AJ found Complainant cited no case law or authority for this proposition and determined that the limitation period could begin before such notification if Complainant had reasonable suspicion of discrimination prior to notification of the identity of the selectees. Moreover, the AJ noted that Complainant determined his non-selection was discriminatory when applicant RH was selected. The AJ expressly noted that in a November 19, 2018 email to an Agency official, Complainant stated that, “RH was officially selected.” The AJ found, therefore, that by November 19, 2018, Complainant knew applicant RH was selected and had a reasonable suspicion of discrimination. Therefore, the AJ concluded the 45-day limitation period commenced on November 19, 2018. Regarding the computation of the 45-day period, the AJ noted that the deadline to initiate EEO counseling was originally no later than January 3, 2019. The AJ noted, however, that due to a lapse of federal appropriations from December 22, 2018 to January 26, 2019, deadlines for initiating EEO counseling which occurred from December 22, 2018 through January 25, 2019, were extended for 40 calendar days. 2021001223 3 Complainant’s deadline was therefore extended to February 12, 2019. The AJ noted, however, that Complainant’s initial EEO Counselor contact was February 13, 2019, beyond the forty-five day limitation period. In summary, we determine that the record supports the AJ’s finding that Complainant had a reasonable suspicion of unlawful employment discrimination more than 45-days before the expiration of the limitation period. We have considered Complainant’s arguments on appeal but find no justification for the delay. Therefore, the Agency’s final order implementing the AJ’s dismissal for untimely EEO Counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021001223 4 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021001223 5 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 March 30, 2022 Date