0120110052
04-24-2012
Candice Knight, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Candice Knight,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120110052
Agency No. HS-10-TSA-005269
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 24, 2010, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer, SV-1801-D, at the Agency's Burbank-Glendale-Pasadena Airport in California. On or about November 25, 2009, the Agency terminated Complainant from her position during her probationary period. According to the termination letter, the reason for Complainant's termination was her failure to follow management's directions to provide medical documentation to support her periods of absence from work.
On December 21, 2009, Complainant filed a mixed case appeal with the Merit Systems Protection Board (MSPB No. SF-0752-10-0263-I-1) alleging that her termination was discriminatory. On January 14, 2010, while her mixed case appeal was pending before the MSPB, Complainant contacted an EEO Counselor regarding her termination. On March 4, 2010, an MSPB Administrative Judge issued an initial decision dismissing Complainant's mixed case appeal for lack of Board jurisdiction. On April 21, 2010, Complainant contacted an EEO Counselor regarding management's actions related to her request for reasonable accommodation, her medical records, and her use of leave.
Thereafter, on June 29, 2010, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and hostile work environment harassment on the bases of race, sex, color, national origin, disability, age, and reprisal1 when:
1. From an unspecified date until November 25, 2009, management denied her request for reasonable accommodation;
2. From an unspecified date until November 25, 2009, management breached the confidentiality of her medical records;
3. From an unspecified date until November 25, 2009, management forced her to use annual leave and sick leave; and
4. On November 25, 2009, management terminated her employment during her probationary period.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency determined that Complainant's January 14, 2010 EEO Counselor contact occurred more than 45 days after the alleged actions. Moreover, the Agency found that Complainant failed to prove that she was unaware of the time limits or did not know that the alleged discriminatory actions occurred.
CONTENTIONS ON APPEAL
On appeal, Complainant submitted a copy of the March 4, 2010 MSPB decision dismissing her mixed case appeal for lack of Board jurisdiction. The Agency did not file a brief or statement in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. � 1614.302(b) provides, in pertinent part, that if a person files a mixed case appeal with the MSPB instead of a mixed case complaint and the MSPB dismisses the appeal for jurisdictional reasons, the agency shall promptly notify the individual in writing of the right to contact an EEO Counselor within 45 days of receipt of this notice and to file an EEO complaint. In addition, the regulation provides that the date on which the person filed her appeal with the MSPB shall be deemed to be the date of initial contact with the EEO Counselor.
Upon review, we find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact. Here, the Agency incorrectly determined that January 14, 2010 was the date of Complainant's initial contact with the EEO Counselor. The record reflects that the MSPB dismissed Complainant's December 29, 2009 mixed case appeal for lack of Board jurisdiction. Pursuant to 29 C.F.R. � 1614.302(b), December 29, 2009 shall be deemed to be the date of initial contact with the EEO Counselor. Because the alleged discriminatory actions occurred on or about November 25, 2009, Complainant was required to initiate contact with an EEO Counselor by January 11, 2010 in order to fall within the 45 day limitation period. Accordingly, we find that Complainant's December 29, 2009 EEO Counselor contact was timely.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission REVERSES the Agency's final decision and REMANDS the complaint for further processing in accordance with the Order below.
ORDER (E0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
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 (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
___4/24/12_______________
Date
1 Complainant did not provide any further information about the bases of discrimination.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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