01a41338
07-12-2005
Henry E. Leinen, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Henry E. Leinen v. Department of Homeland Security
01A41338
July 12, 2005
.
Henry E. Leinen,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A41338
Agency No. 01-4124
Hearing No. 370-A1-X2423
DECISION
Complainant initiated this appeal from the decision of the EEOC
Administrative Judge (AJ) which became the decision of the agency by
operation of law.<1> In his decision dated September 25, 2003, the
AJ determined that complainant failed to contact an EEO Counselor in
a timely manner pursuant to 29 C.F.R. � 1614.107(a)(2) and that even
if complainant's contact were timely, the agency did not discriminate
against complainant.
The record reveals that complainant began working as a term Customs
Inspector for the agency in 1986. Subsequently, complainant also worked
for the agency in a part-time capacity. He became a full-time Customs
Inspector in June 1998. Complainant filed a complaint alleging that
the agency discriminated against him on the bases of sex (male) and age
(D.O.B. February 18, 1954) when he was reassigned to the Port of San
Francisco from September 1, 1998 to October 15, 1999.
At the conclusion of the investigation of his complaint, complainant
received a copy of the investigative report and requested a hearing before
an AJ. The AJ issued a decision without a hearing (summary judgment)
upon motion by the agency for summary judgment.
Complainant's discrimination complaint arises from his claim that Person
A had not been required to work for a year in San Francisco in baggage.
Complainant alleges that he had been required to leave San Jose and work
in San Francisco to satisfy the one-year San Francisco baggage rule.<2>
The record reflects that complainant was notified in August 1998, that he
was to be reassigned to San Francisco for a year's rotation in baggage.
Complainant's affidavit reflects that on September 1, 1998, complainant
began working in baggage rotation in San Francisco where he remained until
October 15, 1999. The EEO Counselor's Report reflects that complainant
initiated EEO Counselor contact in January 2001. In his affidavit,
complainant stated that as the union's chief steward he learned on
January 2, 2001, during the course of a union investigation, that
Person A had never served a one-year rotation in San Francisco baggage.
Complainant also stated that he believed that the one-year San Francisco
baggage rule was applied to all other full-time Customs Inspectors in San
Francisco and San Jose until he discovered in 2001, that the one-year San
Francisco baggage rule was not applied to Person A. The record contains
the affidavit of complainant's supervisor. Complainant's supervisor's
affidavit reflects that Person A began working in San Jose in March 1997,
and that she did not serve a full year in San Francisco baggage because
her one-year assignment was interrupted.
In his decision, the AJ concluded that complainant's EEO Counselor contact
was beyond the 45 days required for timely EEO Counselor contact.
The AJ concluded that complainant should have reasonably suspected
discrimination before his EEO Counselor contact in January 2001, and,
also, that complainant had not provided reasonable justification to
extend the 45-day time period. The AJ indicated that complainant should
have been aware of discrimination when he was initially notified of
his reassignment to San Francisco in August 1998. The AJ noted that
complainant was working with Person A in San Jose for more than a year
before complainant was notified of his reassignment from San Jose to San
Francisco to complete his one-year San Francisco baggage requirement
and should have been aware of the allegedly different discriminatory
treatment accorded to Person A. The AJ also determined that, at the
latest, complainant should have known of the difference in treatment
before his completion in October 1999, of the one-year San Francisco
baggage requirement.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
When a complainant has some reason to support the belief that prohibited
discrimination has occurred, contact with a Counselor must occur.
Waiting until one has proof of discrimination before initiating a
complaint can result in untimely contact. See Bracken v. United States
Postal Service, EEOC Request No. 05900065 (March 29, 1990).
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or
the Commission shall extend the time limits when an individual shows that
he or she was not notified of the time limits and was otherwise unaware
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.
As an initial matter, the Commission notes that the agency asserts on
appeal that complainant never filed an appeal and, if he did, his appeal
was untimely. The record reveals that complainant filed his appeal on
November 5, 2003, by facsimile. Because the record reveals that the AJ's
decision was issued on September 25, 2003, we find that complainant's
appeal on November 5, 2003, is now considered timely.<3>
The Commission further concludes that the AJ's determination that
complainant failed to contact an EEO Counselor in a timely manner was
proper and that the complaint was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2). Complainant's reassignment was a discrete
act which, under the circumstances, should have triggered a reasonable
suspicion that complainant was being discriminated against. The record
reflects that the alleged discriminatory action occurred in 1998, and that
complainant did not initiate contact until January 2001, which was over
two years after the alleged discriminatory reassignment in 1998. Further,
the AJ also properly found that complainant had not provided adequate
justification to extend the time limitation period. Having determined
that the EEO Counselor contact was untimely, the Commission need not
address the AJ's finding on the merits of the complaint.
The agency's dismissal of the 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
July 12, 2005
__________________
Date
1EEOC Regulation 29 C.F.R. � 1614.110(a)
provides that when an Administrative Judge has issued a decision pursuant
to � 1614.109(b), (g) or (i), the agency shall take final action on
the complaint by issuing a final order within 40 days of receipt of the
hearing file and the Administrative Judge's decision. EEOC Regulation 29
C.F.R. � 1614.109(i) provides that if an agency does not issue a final
order within 40 days of receipt of the Administrative Judge's decision
in accordance with � 1614.110, then the decision of the Administrative
Judge shall become the final action of the agency.
2Complainant indicates that pursuant to Memorandums of Agreement,
Inspectors had to rotate through airport baggage in San Francisco.
3The Commission notes that the agency has not provided evidence of when
it received the AJ's decision and the hearing file. See 29 C.F.R. ��
1614.109(i) and 1614.110(a).