0120130269
03-21-2013
Kurt B. Chadwell, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Law Enforcement Training Center) Agency.
Kurt B. Chadwell,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Law Enforcement Training Center)
Agency.
Appeal No. 0120130269
Agency No. HSFLETC225142012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 17, 2012, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a General Attorney employed by the Agency in its Office of Chief Counsel, in Dallas Texas.
On July 16, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was not selected for the position of Attorney Advisor (Instructor) at the Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. In its decision, the Agency asserted that selections were made for the position in question in late 2009, but Complainant did not contact an EEO counselor until May 29, 2012, nearly three years later. The Agency reasoned that Complainant had or should have had a reasonable suspicion of discrimination long before he first sought EEO counseling. The Agency also noted that the record established that Complainant had received prior training in March 2009 and May 2011 that included information on the time limits for seeking EEO counseling.
The instant appeal followed.
ANALYSIS AND FINDINGS
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.
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.
The record shows that on July 7, 2009, Complainant was interviewed for the FLETC position at issue. According to Complainant, in late July, one of the interviewers, the FLETC Branch Chief, contacted him, verbally offering him the position, and requesting additional information, including references, current pay information and an explanation for a seven-month gap in his employment history. Complainant responded to the questions on August 4, 2009. In the process of responding, Complainant stated he revealed that he had filed a civil action claiming discrimination at his previous employment, and that he had received a monetary settlement from his previous employer to settle the discrimination complaint.
Complainant alleged that after he revealed his prior discrimination complaint, he never heard more about the FLETC position. In its dismissal decision, the Agency asserts that its last communication with Complainant concerning the selection was on August 4, 2009. Complainant asserts that he regularly checked his email accounts to see if he had received any notification that a final selection decision had been made. Finally, in April 2012, Complainant sent a letter to the Human Resources office inquiring about the status of his application. Complainant stated that he was told by telephone that he had not been selected for the position. Complainant initiated EEO counseling within 45 days of this telephone notification.
The EEO Counselor's Report reveals that the two selectees for the FLETC position entered duty between June and October 2009.
The Commission has adopted a "reasonable suspicion" 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. In this case, given that Complainant asserts he was initially offered the position in July 2009, we are not convinced that he did not have a reasonable suspicion of discrimination when the Agency no longer contacted him or pursued his application for the next three years. While Complainant was never officially notified that he had not been selected, he does not explain why he did not contact the Agency to find out the status of the matter for such a long period. It is clearly more likely than not that Complainant developed a reasonable suspicion long before his May 2012 EEO counseling request that he had not been selected and it was because he had revealed his prior EEO activity to the selecting officials in August 2009.
On appeal, 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 Complainant's complaint 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
March 21, 2013
__________________
Date
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0120130269
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130269