0120112695
10-13-2011
Xavier D. Gutierrez, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Xavier D. Gutierrez,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120112695
Agency No. 2011-23694-FAA-04
DECISION
On April 28, 2011, Complainant filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the Agency's
decision dated April 8, 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 an Air Traffic Controller/Certified Professional Controller at the
Agency’s O'Hare International Airport in Chicago, IL. On March 16,
2011, he filed a formal complaint alleging that the Agency subjected him
to discrimination based on his race (Hispanic/Latino), color (Brown),
age (49), and reprisal for prior protected EEO activity under Title VII
and the ADEA1 when:
1. in May 2010, he was not selected for promotion to the position of
temporary Front Line Manager, MSS-2, not to exceed (NTE) 1-2 years,
advertised under vacancy announcement AGL-AT-10-0057-121816M;
2. in July 2010, he was not selected for the above position on an interim
basis, NTE 120 days; and
3. on September 13, 2010, he learned that he was not selected for
promotion to the position of temporary Front Line Manager, MSS-2, NTE
1-2 years, advertised under vacancy announcement AGL-AT-10-0089-124331.
The Agency dismissed the complaint for failure to timely initiate EEO
counseling. It reasoned that Complainant did not initiate EEO counseling
until December 2, 2010, beyond the 45 calendar day time limit, and he
had a reasonable suspicion of discrimination more than 45 days prior to
initiating contact with an EEO counselor.
In a timeline submitted as part of his complaint, Complainant wrote on
issue 1a that on May 18, 2010, he received an email from the Acting Air
Traffic Manager informing him that she decided not to make a selection
under vacancy announcement AGL-AT-10-0057-121816M, but one could still
be made under that posting up to October 2010. On issue 1b, Complainant
wrote that in July 2010 a co-worker with less seniority was chosen.
On issue 1c, Complainant wrote that he was informed on September 13,
2010, that he was not going to be selected, and that the next day the
acting manager posted a memorandum identifying the selectee.
CONTENTIONS ON APPEAL
On appeal Complainant contends that he first learned of reprisal when
he talked to an Equal Employment Specialist on November 1, 2010.
Complainant writes they discussed his working environment and the
Specialist, based on her training, saw a problem and gave him guidance.
He contends he is an outstanding employee. Complainant wrote about the
same discussion in his complaint. He wrote that on November 1, 2010, an
Equal Employment Opportunity (EEO) investigator contacted him about his
prior complaint (it alleged harassment, and did not regard promotions).
Complainant wrote they discussed his work environment and he mentioned
that in recent times he was passed over for promotion. He wrote that
he was then given direction to contact EEO intake and make a claim based
on reprisal for not being selected for promotion.
In opposition to the appeal, the Agency argues that Complainant had
a reasonable suspicion of discrimination more than 45 days prior to
initiating contact with an EEO counselor, and cites various contentions
made by Complainant to support this.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The time limit to seek
EEO counseling shall be extended when an individual shows he did not
know and reasonably should not have known that the discriminatory
action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2).
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.
Complainant wrote in his complaint that after the interim position
in issue 1b was announced, the Acting Air Traffic Manager told him on
April 1, 2010, that she had no idea he was interested in the supervisor
position, and he responded that since his arrival in 1995, he did all
that was asked of him, that he was not given the same opportunities
as his co-worker controllers, and that almost every controller that
had been at O’Hare as long as him had been promoted. He wrote that
when he was notified by two managers on April 15, 2010, that he was not
selected for the temporary supervisor detail, he responded that he was
a model employee, that he accepted whatever overtime was needed for the
good of the facility, and that he worked with the same controllers his
whole career and had to sit back and watch them all advance. Complainant
stated that when he noted in the above discussion that he was pulled off
from doing training, he was told he made a female trainee cry, and the
younger group of trainees was not accustomed to his level of perfection.
Complainant indicated he advised one of the managers the next day that
both males and females get overwhelmed by training, and he should not
have been pulled off it. Complainant wrote that when he was advised
by three managers on September 13, 2010, that he was not getting the
promotion for the position in issue 1c, he was told he did not work
well with other controllers, or controllers in training who were female,
and he was out of touch with the younger generation.
We agree with the Agency’s finding that Complainant had a reasonable
suspicion of discrimination more than 45 calendar days prior to
initiating EEO counseling. He has believed since at least April 2010
that he was deserving of a promotion and the Agency was denying him one
for unjustified reasons. When he was advised by management that he was
not going to be selected for the position in issue 1a on September 13,
2010, he was also allegedly told by management that he was out of touch
with the younger generation. This is sufficient to create a reasonable
suspicion of discrimination.
Complainant does not identify any new information he learned on November
1, 2010. Instead, it appears he simply gave things more thought at
that time.
The Agency’s dismissal 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 13, 2011
__________________
Date
1 The Agency defined the complaint as alleging discrimination based
on race/national origin (Hispanic) and/or reprisal for his prior
participation in protected activity. A review of the complaint form
reveals Complainant also alleged discrimination based his color and age.
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0120112695
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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