0520140357
09-17-2015
Complainant, v. Anthony Foxx, 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
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520140357
Appeal No. 0120140576
Hearing No. 471-2013-00057X
Agency No. 2012-24508-FAA-04
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Complainant v. Department of Transportation, EEOC Appeal No. 0120140576 (May 6, 2014).1 EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
In the underlying case, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity when, in 2012, he learned that in 2004 it denied him the opportunity to apply for the position of NAS Plan Program Manager, FV-0801-J, advertised under vacancy announcement number AGL-AAF-04-0054-72962. Specifically, Complainant, who was detailed to the position in the 0301 series from 2002 to 2004, alleged that the Agency discriminatorily announced the position in the 0801 series. The 0801 series required an engineering degree, which Complainant did not have. The Agency ultimately selected an applicant who was Caucasian and White.
The appellate decision affirmed the Agency's final order implementing the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision to dismiss Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the appellate decision found that Complainant reasonably suspected discrimination in 2004, but did not initiate contact with an EEO Counselor until 2012, approximately eight years beyond the 45-day limitation period. The appellate decision noted Complainant's argument that he did not reasonably suspect discrimination until 2012 when, while reviewing position description binders, he discovered that the Agency had misled him in 2004 about the reason for the requirement change. The appellate decision, however, found that Complainant knew something was amiss in 2004, which prompted him to ask the Agency about the reason for the requirement change.
In his request for reconsideration, Complainant argued that the appellate decision clearly erred in finding that he reasonably suspected discrimination in 2004. Essentially, Complainant asserted that, although he was initially suspicious in 2004 about the requirement change, the Agency assuaged his suspicions when it gave him a reasonable explanation for the change. In addition, Complainant asserted that it was only in 2012 that he discovered information which revealed that the Agency's explanation was false.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant did not show that the appellate decision clearly erred in dismissing his complaint for untimely EEO Counselor contact.
As the appellate decision previously noted, the Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the
45-day limitation period is triggered; 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. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). In his June 23, 2013 opposition to the Agency's motion to dismiss, Complainant stated that he "was not aware that the change had been executed to exclude him from applying, although he had a feeling that something was amiss" (referring to 2004) and that "[o]nly after he uncovered the lie did he discover the discrimination" (referring to 2012). Although Complainant may not have discovered all the facts to support his allegation of discrimination until 2012, we find that the appellate decision did not clearly err in finding that Complainant reasonably suspected discrimination in 2004.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120140576 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
_9/17/15_________________
Date
1 On May 19, 2014, Complainant filed a request for reconsideration along with supporting documents. On June 25, 2014 and July 15, 2014, Complainant submitted additional supporting documents. A request for reconsideration must be filed with the Commission within 30 days of receipt of a decision of the Commission and the requesting party must submit any supporting documents at the time the request is filed. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VII.B (Aug. 5, 2015). Accordingly, we decline to consider Complainant's untimely June 25, 2014 and July 15, 2014 submissions.
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