0120151486
02-15-2017
Nathanial E.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nathanial E.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120151486
Agency No. 2015-25997-FAA-04
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 27, 2015, 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 worked as an Air Traffic Controller at the Agency's facility in Youngstown, Ohio. In October 2010, Complainant was informed by the Agency that he did not successfully complete the Terminal Training Program. As a result, in 2011, Complainant accepted a reassignment to the Flight Data Communications Specialist position in the Washington "ARTCC." Complainant was told that upon completion of the training, he could return to the Air Traffic Controller series.
Complainant indicated that the Air Traffic Manager mislead him into believing that the reassignment back to his former position would happen. He asserted that a co-worker told him he was "tricked" by the Agency. As a result, on September 27, 2014, Complainant contacted the EEO Counselor alleging discrimination.
On February 5, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (Black) when: after failing training as an Air Traffic Control Specialist (ATCS) at the Youngstown ATCT in 2010, Complainant accepted a reassignment to a Flight Data Communication Specialist position at the Washington ARTCC in 2011, under the belief that he would eventually be placed back into an ATCS position. After talking to a co-worker, Complainant now believed that he was subjected to disparate treatment at the Youngstown ATCT in 2010 and 2011, and discriminatorily misled.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency indicated that Complainant asserted he did not become aware of the discrimination until a co-worker informed him that he was "tricked" by the Agency. However, the Agency held that Complainant should have been aware of the alleged discrimination when he was informed that he failed training and was reassigned in 2011. Therefore, the Agency determined that Complainant did not act with due diligence, and consequently, his complaint is dismissed because of untimely counselor contact.
Complainant appealed asserting that he was subjected to a "continuing violation." In addition, Complainant argued that the Manager misled him into believing that he would be returned. As such, he requested that the Commission reverse the Agency's final decision. The Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, we find that Complainant alleged discrimination when he was informed that he failed training in 2010 and was subsequently reassigned in 2011. Complainant indicated that he was informed by the Air Traffic Manager that he would be returned to his prior position. As such, he argued that he was misled by the Air Traffic Manager. He did not contact the EEO Counselor until a Co-worker told him he was "tricked."
Complainant did not indicate when he was allegedly misled by the Manager. Furthermore, Complainant had been reassigned in 2011 but did not contact the EEO Counselor until September 2014, over three years later. The Commission has consistently held that a complainant must act with due diligence in the pursuit of his or her claim or the doctrine of laches may apply. See O'Dell v. Dep't of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his or her course of action could bar his or her claims. Based on the record before the Commission, we find that Complainant failed to pursue his claims with any diligence or expediency. As such, we determine that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
February 15, 2017
__________________
Date
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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