0120073236
01-15-2009
Travis J. Bishop, Jr, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Travis J. Bishop, Jr,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120073236
Agency No. HS-06-TSA-001860
DECISION
Complainant filed an appeal with this Commission from the final agency
decision, dated March 25, 2007, dismissing his formal 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.
The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.
During the relevant time, complainant worked as a Transportation Screening
Officer at the Midway Airport in Chicago, Illinois. According to the
EEO Counselor's Report, complainant contacted the EEO office on April
20, 2006 regarding claims of racial discrimination. Informal efforts
to resolve complainant's concerns were unsuccessful.
On October 26, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that he was discriminated against when:
On February 8, 2006, during the annual recertification testing,
complainant was separated from others and tested
individually.
In its final decision, the agency dismissed the formal complaint on
the grounds of untimely EEO Counselor contact. The agency found that
complainant contacted the EEO office on April 20, 2006, regarding an
incident that occurred on February 8, 2006. According to the agency,
when questioned about the delay, complainant stated that the agency's
Office of Civil Rights and Liberties (OCRL) failed to return his
telephone calls in a time manner and he was unable to connect to a
person on the hotline number. The agency concluded that this reason
did not justify complainant missing the time limit by twenty-four days.
Further, the agency found that, in light of complainant's explanation,
his assertion that he made contact on February 13, 2006 was not credible.
Complainant filed the instant appeal.
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 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.
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.
As noted above, the EEO Counselor's Report indicates that complainant
contacted the EEO Counselor on April 20, 2006, regarding the testing
incident that occurred on February 8, 2006. While complainant identifies
February 13, 2006, as the date of his initial contact in his formal
complaint, this earlier date is not supported by any statement or
evidence. Further, the EEO Counselor's Report reveals that when
questioned about his delayed contact, complainant stated that he
could not reach anyone on the hotline number and that his calls were
not returned for several days. The Commission agrees with the agency,
that complainant's explanation does not justify contact that was weeks
beyond the forty-five day time limitation.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
January 15, 2009
__________________
Date
2
0120073236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120073236