U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marina A.,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120161200 Hearing No. 510-2015-00285X Agency No. HS-TSA-01438-2014 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency's December 1, 2015, final order concerning an equal employment opportunity (EEO) complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was a former Transportation Security Officer at the Agency's Fort Lauderdale-Hollywood International Airport in Fort Lauderdale, Florida. On September 8, 2014, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of sex (female), disability (physical), and reprisal for prior protected EEO activity when, on September 15, 2013, she was removed from federal service. As noted, Complainant learned that she had been terminated on September 15, 2013; however, she did not initiate EEO Counselor contact within 45 days; instead, on December 16, 2013, after discovery had closed in another case that was pending before an EEOC Administrative Judge (AJ), she filed a Motion to Amend on the grounds that her termination claim was "like or related to" her pending complaint. According to Complainant, she waited until December 2013, because she had been pursuing an internal agency appeal with the Office of Professional Responsibility Appellate Review Board. In May 2014, the AJ denied Complainant's request to amend her complaint finding the motion to be untimely. Thereafter, Complainant returned to the Agency and contacted an EEO Counselor on June 3, 2014. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing. Complainant timely requested a hearing. The matter came before the AJ. The Agency filed a motion to dismiss the complaint for untimely EEO Counselor contact. On October 30, 2015, the AJ issued a decision in favor of the Agency. Among other things, the AJ found that, pursuant to EEOC regulations, Complainant was obligated to seek timely EEO Counselor contact within 45 days of when she reasonably suspected discrimination, and that she was under no obligation to wait until the internal appeal process was completed. Moreover, the AJ also determined that Complainant failed to provide an adequate reason for tolling the 45-day time limitation period. The Agency issued a final order adopting the AJ's dismissal of Complainant's complaint for untimely EEO Counselor contact. The instant appeal followed. The Commission's regulations allow an AJ to dismiss complaints pursuant to 29 CFR § 1614.107 upon an agency motion to dismiss a complaint. 29 CFR § 1614.109(b). Further, 29 CFR § 1614.107(a)(2) states, in relevant part, that an agency shall dismiss an entire complaint that fails to comply with the applicable time limits contained in §1614.105. 29 C.F.R. § 1614.105(a)(l), which requires that complaints of discrimination 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. Further, Commission 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. See 29 CFR § 1614.105(a)(2). Here, Complainant learned that she was terminated on September 15, 2013. As was noted above, she decided to appeal her dismissal through an internal Agency process, and did not contact an EEO counselor until June 3, 2014, after unsuccessfully attempting to have her termination allegation joined with a pending complaint. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, we AFFIRM the Agency's final action because the AJ correctly determined that her EEO counselor contact was untimely. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 _9/14/17_________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161200 2 0120161200