0120080954
03-14-2008
Barrie J. Fishkin, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Barrie J. Fishkin,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120080954
Agency No. HS-07-TSA-000928
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 25, 2007, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. 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.
At the time of the events at issue, complainant was employed by the
agency as a Lead Transportation Security Officer (Lead TSO) at its Knox
County, Maine location. Complainant was originally hired in October
2002 as a part-time Transportation Security Officer (TSO). On February
13, 2004, he was temporarily promoted to Lead TSO, which was later
made permanent on May 4, 2004 , but remained as a part-time employee
despite making numerous requests to management to convert to full-time.
He alleges he was told there were no full-time positions available.
Complainant asserts that sometime after his promotion, the agency hired
a younger female (C1) as a full-time TSO. Complainant said he protested,
to no avail, this fact to management asserting he should have been given
the full-time job ahead of C1. As a result, in July 2004, complainant
transferred to Orlando, Florida where a full-time position was available
for him. He alleges that about one month after his transfer, a vacancy
announcement was posted for a full-time Lead TSO position in his former
facility in Maine. He applied for the position, but on October 21, 2004,
C1 was selected for the position. Later, a promotional opportunity
for a Supervisory TSO position was advertised for the Maine facility,
which limited applicants to current employees of that facility. C1 was
selected for the position on February 19, 2006.
On November 14, 2006, complainant initiated contact with an Equal
Employment Opportunity (EEO) Counselor alleging that the agency
discriminated against him in the above-described matters based on sex
(male). Subsequently, complainant filed a formal complaint reiterating
the above claim and adding the basis of age (over 40).
EOC 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. 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 C1 was selected for the full-time Lead TSO
position on October 21, 2004. However, complainant did not initiate
contact with an EEO Counselor until November 14, 2006, which is beyond
the forty-five (45) day limitation period. Even counting from the
February 19, 2006 date when C1 received her subsequent promotion to the
Supervisory TSO position, complainant still did not make timely contact
with the EEO Counselor. On appeal, we find that complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the agency's
final decision dismissing complainant's complaint is AFFIRMED.
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 (S0900)
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 (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
March 14, 2008
__________________
Date
2
0120080954
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120080954