01a44241
07-29-2005
Jose Scott, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Jose Scott v. Department of Homeland Security
01A44241
July 29, 2005
.
Jose Scott,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A44241
Agency No. I-03-EO33
Hearing No. 110-2003-08561X
DECISION
Complainant initiated an appeal from the agency's final order concerning
his equal employment opportunity (EEO) 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. For the following
reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Detention Enforcement Officer at
the agency's U.S. Immigration and Naturalization Service, Atlanta District
Office facility, filed a formal EEO complaint dated December 28, 2002,
alleging that the agency discriminated against him on the bases of race
(African-American) and sex (male) when:
Complainant was not selected for the position of Supervisory Detention
Enforcement Officer, GS-1802-09, advertised under vacancy announcement
number ATL MSP II 02-01.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On March 30, 2004, the AJ issued a decision without a
hearing, granting the agency's motion for a decision without a hearing
and dismissing complainant's complaint for untimely EEO Counselor contact.
The AJ concluded that complainant received a letter from the agency,
dated April 1, 2002, indicating that his application for the subject
position had been rejected because complainant did not possess the
required time-in-grade at the GS-8 level, in order to qualify for the
GS-9/10/11 grade level for which he had applied. Specifically, the AJ
found that complainant was informed at a meeting with his supervisor
that he did not make the list of eligible applicants sometime before the
rejection letters were actually mailed. The AJ observed that complainant
testified<1> that he was shocked at the way that Black officers were
treated at the Atlanta District Office shortly after his arrival in
2001 and that he suspected discrimination at that time. The AJ found
that complainant should reasonably have suspected discrimination at the
time of the meeting with his supervisor wherein he was informed he was
found ineligible for the subject position. Accordingly, the AJ found
that complainant's initial EEO contact in October 2002 was untimely.
The agency's final order implemented the AJ's decision.
On appeal, the agency argues that in addition to being untimely,
complainant failed to establish a prima facie case of either race or
sex discrimination. Specifically, the agency states that the record
shows that the agency selected two applicants for the position for which
complainant applied. The agency selected a female applicant and also
a male applicant, both Caucasian. Accordingly, complainant's claim
based on sex fails. Further, the agency notes that because complainant
was found to be ineligible for the grade level for which he applied,
complainant was not considered for selection for either position.
Accordingly, the agency found that complainant did not identify any
other similarly situated applicants, not in his protected classes, who
were treated any better than he was. Accordingly, the agency requests
that the Commission affirm its final order and find, moreover, that
complainant has not established that discrimination occurred as alleged.
EEOC 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. We find the complaint is properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
We therefore AFFIRM the agency's final order adopting the AJ's decision,
dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
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 29, 2005
__________________
Date
1The record indicates that the AJ heard
complainant's testimony on the morning set for hearing of complainant's
complaint (February 11, 2004), but that same day, issued a bench decision,
granting the agency's motion for a decision without a hearing, and
dismissed the complaint.