Kiera H.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

May 16, 2019

0120181349 (E.E.O.C. May. 16, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kiera H.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120181349

Hearing No. 480-2016-00486X

Agency No. HSTSA233722015

DECISION

On March 12, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 12, 2018, final order concerning her equal employment opportunity (EEO) complaint
alleging 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer, SV-1802-E, at Los Angeles International Airport in Los Angeles, California.

On May 28, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), color (medium brown), and
disability (unspecified), when on or about December 10, 2014, she was required to take 40 hours
of leave after she was issued a proposed removal.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s December 14, 2017,
motion for a decision without a hearing and issued a decision without a hearing on January 2, 2018.
The AJ dismissed the complaint for untimely EEO Counselor contact. The Agency subsequently
issued a final order adopting the AJ’s decision.

ANALYSIS AND FINDINGS

In the instant case, the AJ found that Complainant failed to timely initiate contact with an EEO
counselor regarding the alleged incident of discrimination. EEOC Regulation 29 C.F.R. §
1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an
EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case
of a personnel action, within 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. Dep't of the
Navy, EEOC Request No. 05970852 (February 11, 1999). Under this standard, 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 45-day time limit for initiating
contact with EEO counselor is subject to waiver, estoppel, and equitable tolling in accordance with
29 C.F.R. § 1614.604(c).

On appeal, Complainant contends that she did not reasonably suspect that the Agency engaged in
discrimination when on or about December 10, 2014, she was required to take 40 hours of leave
after she was issued a proposed removal. Complainant asserts that she learned about the
discriminatory nature of such action on February 15, 2015, and timely reported the incident to an
EEO counselor on February 24, 2015.

Upon careful review of the AJ's decision and the evidence of record, the Commission finds that
Complainant should have reasonably suspected that the Agency’s December 10, 2014, mandate to
take leave was discriminatory. Filing time limitations for this type of discrete employment action
generally runs from the time the action occurred. See National Railroad Passenger Corp. v.
Morgan, 122 S.Ct. 2061 (June 10, 2002). Complainant has not adequately explained how the
information she allegedly received on February 15, 2015, provided her with a reasonable suspicion
regarding the December 10, 2014 incident. Moreover, we find that the records cited in
Complainant’s opposition and appellate briefs fail to persuasively support her contention that she
did not reasonably suspect discrimination until February 15, 2015.2 For these reasons, we conclude
that the AJ properly dismissed Complainant’s case for untimely contact with an EEO Counselor.

2 For example, Complaint’s citation to footnote 1 on page 60 of the report of investigation (ROI),
does not reveal anything of relevance. Complainant’s other page citations, to include pages 34, 36,
44, 48, 60, 97-100 of the ROI, either point to irrelevant or non-persuasive evidence.
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CONCLUSION

We AFFIRM the Agency’s decision dismissing the complaint.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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 (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 Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 16, 2019
Date