Tania O.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

May 20, 2016

0120161107 (E.E.O.C. May. 20, 2016)

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

Tania O.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120161107

Hearing No. 540-2014-00161X

Agency No. HS-TSA-01890-2013

DECISION

Complainant filed an appeal with this Commission from the Agency's final order dated
September 21, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

On January 6, 2014, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of sex (female) and in reprisal for prior protected EEO
activity when:

The Agency relieved Complainant of her duties as a Supervisory Transportation
Security Officer (STS0), while under investigation in April 2011, and subsequently, the
Agency demoted her on May 22, 2011.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
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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hearing. The Agency filed a motion to dismiss Complainant’s complaint for untimely EEO
Counselor contact. Complainant filed a response opposing the Agency’s motion to dismiss.

On August 10, 2015, the AJ issued an Order granting the Agency’s motion and dismissing
Complainant’s complaint for untimely EEO Counselor contact. The AJ noted that
Complainant contacted an EEO Counselor on July 26, 2013, regarding personnel actions which
transpired in April and May 2011. The AJ noted Complainant contends that she learned of the
more favorable treatment of similarly situated male STSOs only after her demotion; thus, she
contends that she did not have a “reasonable suspicion” of discrimination until after the 45-day
period. However, the AJ noted that Complainant appealed her demotion in June 2011, to the
Agency’s Office of Professional Responsibility (OPR) Appellate Board and specifically claimed
that she had been held “far more accountable than [her] peers.” Furthermore, the AJ noted
that of the four male comparatives who she identified in the ROI, at least two of them were
involved in disciplinary incidents in 2011 and 2012. The AJ also noted that Complainant
asserts that she contacted an EEO Counselor “once I found out that all I was being informed
about was accurate and could be validated.”

The AJ stated that the time period for contacting an EEO Counselor is triggered as soon as a
complainant suspects discrimination, and a complainant may not wait until all supporting facts
have become apparent. The AJ noted there was no dispute that based on her prior EEO
activity and supervisory and EEO training, Complainant was aware of the 45-day time limit for
contacting an EEO Counselor. The AJ determined that Complainant’s own statements to the
OPR Appellate Board suggest she did not exercise due diligence in pursuing her claim. The
AJ noted in her opposition to the Agency’s motion to dismiss, Complainant addresses the
merits of her case.

On September 21, 2015, the Agency issued a final order. The Agency’s final order fully
implemented the AJ’s decision dismissing Complainant’s complaint.

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. The record
discloses that the alleged discriminatory events occurred in April and May 2011, but
Complainant did not initiate contact with an EEO Counselor until July 26, 2013, which is over
two years beyond the 45-day limitation period. The Commission finds that Complainant
should have had a reasonable suspicion of discrimination at the time of the alleged
discriminatory events. 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 order dismissing Complainant's complaint is AFFIRMED.

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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.

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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 20, 2016
Date