0120102853
08-17-2012
Lizzette Caballero, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Lizzette Caballero,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120102853
Agency No. HS05-TSA-02322
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 18, 2010, dismissing her 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was as a Former Transportation Security Officer at the Agency's Luis Munoz Marin International Airport facility in Carolina, Puerto Rico. On November 12, 2005, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of sex (female), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 23, 2003, TSA demoted her from Screening Manager to Screener.
2. From March 2003 through September 26, 2004, TSA harassed her on numerous occasions, including the following examples:
a) TSA assigned her to perform timekeeping duties and subsequently moved her out of the office after she provided information about the Federal Security Director's (FSD) relationship with the Stakeholder Manager in connection with Complainant's prior sexual harassment complaint.
b) TSA allowed the alleged sexual harasser in her prior sexual harassment complaint to enter the Operations office.
c) TSA required her to submit additional medical documentation concerning her back problem, causing her to incur a $200 expense.
d) TSA assigned her to the baggage area after she became a Screener, while permitting other screeners to work in the office.
e) TSA assigned her to the busiest checkpoint, known as the "punishment checkpoint" to humiliate her.
f) Screeners at the "punishment checkpoint," whom she formerly supervised, directed unwelcome remarks and body language at her.
g) The FSD refused to accept a letter from her physician and required her to provide one from a psychiatrist within two weeks.
h) The FSD refused to keep her apprised of her sexual harassment complaint.
i) The FSD instructed an employee to monitor her dress while allowing other female employees to dress casually.
j) The Administrative Officer (AO) opposed her workers' compensation claims and provided false information to the Office of Workers' Compensation Programs.
The record reveals that Complainant made contact with an EEO Counselor on August 1, 2005, and the initial interview was held on October 5, 2005. On November 4, 2005, Complainant was issued a Notice of Right to File a Discrimination Complaint. Subsequently, she filed a formal complaint. On July 25, 2006, the Agency dismissed the complaint on the grounds of untimely EEO counselor contact. On August 12, 2006, Complainant appealed the dismissal to the Commission. On November 13, 2006, the Agency filed a motion with the Commission to dismiss this case as moot because the Agency had improperly dismissed the case as untimely and wanted to correct the error. The Agency indicated that the record showed that it found evidence that Complainant had contacted an EEO Counselor in May 2003. The Agency indicated that an investigation would be initiated and a decision on the merits would be issued. On May 18, 2010, the Agency issued a new decision again dismissing Complainant's claims for untimely EEO Counselor contact. Thereafter, Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant disputes the Agency's dismissal of her complaint for untimely EEO Counselor contact when in a previous decision it acknowledged having evidence which showed that she, on May 28, 2003, had contacted an EEO Counselor. Complainant requests that a FAD on the merits be produced.
ANALYSIS AND FINDINGS
The record discloses that the alleged discriminatory incidents occurred at the earliest in March 2003, and at the latest on September 26, 2004 but Complainant did not initiate contact with an EEO Counselor until August 1, 2005, which is well beyond the forty-five (45) day limitation period. Complainant argued on appeal, that she contacted an EEO Counselor on May 28, 2003, regarding the harassment she experienced and the demotion. The record supports her argument as there are two letters in the file from the EEO Counselor. The first letter dated June 2003, acknowledges receipt of Complainant's letter. In the second letter dated July 2003, the EEO Counselor again acknowledges the receipt of Complainant's May 28, 2003, inquiry and included attached forms which were to be returned to the EEO Counselor. The record however does not show that the forms were returned or that any action was taken with regard to these claims.
We find that although the record reveals that Complainant contacted an EEO Counselor in May 2003, there is no evidence that Complainant had any further contact with the EEO office until August 2005. We find that although Complainant may have initiated contact with an EEO Counselor, she did not exhibit the intent to pursue the EEO process until August 2005. The record shows that when Complainant was asked why she had waited so long to pursue her complaint, she indicated that she had waited for proof from the Office of Worker's Compensation (OWC) and once she received a letter which indicated that OWC believed she had been subjected to discrimination, she pursued her claim.1 While we find that the Agency has been less than helpful with regard to explaining its decision to again dismiss Complainant's complaint on the grounds of untimely counselor contact, we find that Complainant abandoned her claims as there is no indication in the record that any action showing an intent to pursue the EEO process was made by her after her May 2003 contact. See Gates v Department of the Air Force, EEOC Request No. 05910798 (November 22, 1991)(citing Moore v. Department of Treasury, EEOC Request No. 05900194 (May 24, 1990); Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996).
CONCLUSION
Complainant's has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that Complainant's complaint was properly dismissed for untimely EEO Counselor contact. 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
___8/17/12_______________
Date
1 The Commission has long held that a Complainant cannot wait for evidence that they were discriminated against to pursue their claim but instead must take action as soon as they reasonably suspect that discrimination was occurred.
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0120102853
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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