Karen M. Budnik, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency. Appeal No. 01200558101 Agency No. 05-0903 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated August 12, 2005, dismissing her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. On August 19, 2004, complainant initiated EEO Counselor contact.2 Informal efforts to resolve her concerns were unsuccessful. In her formal complaint, filed on December 18, 2004, complainant claimed that she was subjected to unlawful employment discrimination on the bases of sex and age. In its final decision, dated August 12, 2005, the agency determined that complainant's complaint was comprised of the following claims: In May 2004, [complainant] learned that (1) two Transportation Security Screeners who were probationary employees were converted from part-time to full-time status at the Cleveland, OH, Hopkins International Airport, but [complainant] with more seniority [was] passed over for full-time status, and (2) a fill-time screener was allowed to transfer from another airport to Cleveland and retain his full-time status, although [complainant] as a full-time employee at another airport who transferred to Cleveland [was] offered only part-time status. The agency dismissed complainant's complaint on the grounds of untimely EEO Counselor contact. Specifically, the agency stated that "[complainant's] June 2, 2005 letter evinces that [she] first became aware of the alleged discriminatory conduct sometime in May 2004, when [she] asked a supervisor about a rumor that two part-timers were converted to full-time status and also discovered that an employee who had transferred from the Denver International Airport to the Cleveland airport was able to retain his full-time status, as compared with [complainant] who lost [her] full-time status when [she] transferred to Cleveland under a hardship transfer. [Complainant's] initial contact with the EEO Counselor occurred on August 20, 2004. This contact is more than 45 days after [complainant] became aware of the alleged discriminatory events. Assuming for the sake of argument that [complainant] became aware of the conduct on May 31, 2004, and not earlier, the 45-day period began on June 1, [2004], and expired on July 15, 2004." The agency also stated that complainant had knowledge of the 45-day time limit through trainings and posters displayed at the facility. Specifically, the agency stated that "[w]hen an EEO Counselor asked [complainant] about why [she] had delayed contact beyond the 45-day period, [she] responded that [she] found out about the [Office of Civil Rights] from EEOC's Cleveland Office. This statement implies that [complainant was] unaware of the specific office within the Component that processed complaints of employment discrimination, but it does not in any way indicate that [she] was unaware of the 45-day time limitation." The agency further stated that complainant should have been aware of the applicable time limit through various trainings she attended and posters displayed at the facility. On appeal, complainant states that "[r]umors are not confirmations of evidence and [complainant's] attempt to gather factual evidence to support her right to file a grievance, is not hinder[ed] by the fact that the Office of Civil Rights says that she must first accept hearsay as supportive proof as the standard to make a filing of her claim." In response, the agency requests that we affirm its final decision. The agency reiterates that complainant suspected discrimination in May 2004. In addition, the agency asserts that complainant was aware of the 45-day time limitation through trainings she attended and posters displayed at the facility. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. As an initial matter, we note that the agency separated complainant's complaint into two separate claims. However, upon review of the record, the Commission finds that complainant's complaint is comprised of a single claim, that is, that complainant was not provided with full-time status when she transferred to the Cleveland airport.3 We agree with the agency that complainant reasonably suspected discrimination in May 2004, when she heard rumors that two part-time male employees were converted to full-time status and when she discovered that another male employee transferred to the Cleveland airport keeping his full-time status. The record contains a copy of a letter from complainant to the agency's Office of Civil Rights dated June 2, 2005. Therein, complainant stated that in May 2004, she asked a named supervisor "about a rumor that two part-timers were converted to full-time before [her]. [Two named male employees] both did not have seniority over me. I also discovered that a [named male employee] from [the] Denver Airport transferred to [the] Cleveland Airport keeping his full-time status." Complainant nevertheless asserted that she was unaware of the 45-day time limit. The record contains a copy of the EEO Counselor's Report. Therein, the EEO Counselor provided that complainant, when asked why she delayed contacting an EEO Counselor beyond the 45-day period, stated that "she found out about the Office of Civil Right[s] from the EEOC in Cleveland on August 19, 2004." In its final decision, the agency stated that this statement does not indicate that complainant was unaware of the 45-day time limit. However, we disagree. We find that through this statement, complainant asserts that she was not aware of the 45-day time period for initiating EEO Counselor contact. The agency stated that complainant had knowledge of the 45-day time period through various EEO trainings. However, the record does not support this assertion. The record contains a copy of an e-mail from an Administrative Officer (AO) dated May 17, 2005. Therein, the AO stated that "I asked our training [department] to check their records regarding what [complainant] received at her previous airport assignment...regarding EEO training. Her...records indicate that she has had EEO and Diversity Training along with Code of Conduct Training on [May 12, 2003]. Records also indicate that she had Responsibilities and Conduct Training...which included some EEO information covered in item 17, on [September 16, 2002], [May 12, 2003], [February 2, 2004], and December 12, 2004." While the e-mail asserts that complainant attended various trainings which included "some EEO information", the record is devoid of affidavit and/or documentary evidence that the trainings specifically covered the 45-day time limit for initiating EEO Counselor contact. The agency also asserts that complainant had constructive knowledge of the 45-day time period through posters displayed at the facility. However, the record does not clearly support this assertion. In the AO's e-mail dated May 17, 2005, she stated that "[t]he EEOC poster has been located in the north break room since shortly after the airport rolled out in August 2002. The [Office of Civil Rights] posters have been posted since they were sent to us by your office."4 In addition, the record contains an e-mail from a named individual (I1) to the AO dated May 17, 2005. Therein, he provides that there is an EEOC-P/E-1 poster located in the north break room, and that there are Office of Civil Rights posters located in the central break room, the south break room, and in the training room.5 While the above referenced e-mails reflect that there were posters located at the worksite, the record is devoid of information that these posters specifically contained information regarding the 45-day time limit for initiating EEO Counselor contact. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In the instant matter, we find that the agency has not met its burden. Accordingly, for the reasons stated herein, we REVERSE the agency's final decision dismissing complainant's complaint and we REMAND this matter to the agency for further processing in accordance with the ORDER below. ORDER (E0900) The agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to complainant a copy of the investigative file and also shall notify complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the complainant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of complainant's request. A copy of the agency's letter of acknowledgment to complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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 19848, Washington, D.C. 20036. 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 (R0900) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 11/9/2006 Date 1 Due to a new data system, this case has been re-designated with the above referenced appeal number. 2 The Commission notes that while the EEO Counselor's Report provides that complainant initiated EEO Counselor contact on August 20, 2004, the Office of Civil Rights contact form provides that she initiated EEO Counselor contact on August 19, 2004. 3 The record reflects that complainant was provided with full-time status in August 2004. 4 The Commission notes that the record is devoid of information as to when the Office of Civil Rights sent posters to the Cleveland airport. 5 The record does not contain copies of these posters. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120055810 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 2 0120055810