0120112972
10-24-2011
Larry E. Meucci, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Larry E. Meucci,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120112972
Agency No. 201123777FAA04
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated April 28, 2011, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Front-Line Manager on detail as an Operations Manager (OM), at the
Agency’s ZAU Chicago ARTCC facility in Chicago, Illinois.
On March 31, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of age (55)
and reprisal for prior protected EEO activity when, on November 21,
2010, his promotional detail as OM was terminated.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for failure to contact the EEO counselor in a timely
manner. In its decision, the Agency determined that Complainant first
contacted an EEO counselor to raise this matter on January 11, 2011,
more than 45 days after his detail was terminated on November 21, 2010.
The instant appeal followed. On appeal, Complainant states that,
before his detail was actually ended, he was told that “employees
on OM details would not be continued in such employment classification
if they were eligible for normal retirement.” On the other hand, he
stated he was also told that he was being removed from his detail for
poor performance and he disagreed with that assessment. Thus, Complainant
stated he was not sure as to the actual reason for the termination of the
detail. Accordingly, Complainant explains the length of time it took him
to seek EEO counseling as a result of the “delay in obtaining relevant
factual information.” At the same time, Complainant also states
that he became aware that age may have been a factor on December 5,
2010, as the result of a conversation with another Operations Manager.
The Agency, in response to the appeal, noted that Complainant still
had ample time to contact an EEO counselor in a timely manner after the
December 5, 2010 conversation.
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.
The record discloses that the alleged discriminatory event occurred on
November 21, 2010, but Complainant did not initiate contact with an EEO
Counselor until January 11, 2011, which is beyond the forty-five (45) day
limitation period. 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. In this case, Complainant admits
that he knew, in time to meet the 45-day limitation period, that people
in his age group were being removed from details beyond the age of 56. His
conversation with the other OM merely reinforced what he had already been
told regarding the effect of age on OM managers on detail. Therefore,
we find that Complainant reasonably suspected age discrimination by the
time his detail was terminated. He did not seek EEO counseling within
45 days of that termination, as required by regulation.
Accordingly, the Agency's final decision dismissing Complainant's
complaint for untimely EEO counseling 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
October 24, 2011
__________________
Date
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0120112972
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112972