Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, (Transportation Security Administration) Agency.

Equal Employment Opportunity CommissionAug 27, 2014
0120141839 (E.E.O.C. Aug. 27, 2014)

0120141839

08-27-2014

Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, (Transportation Security Administration) Agency.


Complainant,

v.

Jeh Johnson,

Secretary,

Department of Homeland Security,

(Transportation Security Administration)

Agency.

Appeal No. 0120141839

Agency No. HS-TSA-01820-2013

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 8, 2014, dismissing a formal complaint of unlawful employment discrimination alleging a violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.

BACKGROUND

During the period at issue Complainant worked as a Transportation Security Officer at an Agency facility at the Sky Harbor Airport, Phoenix, Arizona.

On July 15, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.

On January 2, 2014, Complainant filed the instant formal complaint, claiming discrimination on the basis of disability. The formal complaint was comprised of the following two claims:

1. From 2008 to March 28, 2012, he had been subjected to a hostile work environment; and

2. On March 28, 2012, he was terminated from his Agency position.

In the instant final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact.

The instant appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, 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.

In the instant case, the latest alleged discriminatory action occurred on March 28, 2012, but Complainant did not initiate contact with an EEO counselor until July 2013, over a year later. On appeal, Complainant requests that his untimely contact be excused because he asserts that he was unaware of the limitation period for initiating timely EEO counselor contact, but only subsequently was made aware of the limitation period after a discussion with an attorney.

We are not persuaded by Complainant's appellate arguments regarding the reason for his delay in initiating contact with an EEO Counselor. The record contains various training documents submitted by the Agency, reflecting that Complainant had undergone training sessions where the 45-day limitation period for making timely EEO Counselor contact was addressed. As such, 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 the formal complaint for the reason stated herein is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

August 27, 2014

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:

__________________

Date

______________________________

Compliance and Control Division

2

0120140197

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2 0120141839

4 0120141839