0120111925
02-22-2012
Cynthia M. Mattson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Cynthia M. Mattson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120111925
Agency No. HS-TSA-18160-2010
DECISION
Complainant filed a timely appeal with this Commission from the
Agency’s decision dated December 30, 2010, dismissing her complaint
of unlawful employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. Upon review, the Commission finds that
Complainant's complaint was properly dismissed pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely EEO counselor contact.
At the time of events giving rise to this complaint, Complainant worked
as a Transportation Security Officer at the Denver International Airport
in Denver, Colorado. On November 9, 2010, Complainant filed an EEO
complaint alleging that the Agency subjected her to discrimination on
the bases of disability and in reprisal for prior protected EEO activity
when, on July 6, 2010, she was terminated from her position.
In its decision, the Agency dismissed the complaint pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. The Agency
determined that Complainant was terminated on July 6, 2010, but did not
contact an EEO counselor until August 23, 2010, 3 days beyond the 45-day
limitation period, the Agency dismissed the complaint for untimely EEO
counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she timely initiated contact with
the Agency “by computer” and no one returned her message. Complainant
submitted a copy of an August 20, 2010 email she claimed she sent to the
Agency’s Office of Civil Rights and Liberties asking for confirmation
that they received her complaint “regarding TSO separation from duty
from an OWCP injury claim.” Accordingly, Complainant requests that
the Commission reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R §1614.107(a)(2) states, in pertinent part,
that an agency shall dismiss a complaint which fails to comply with the
applicable time limits contained in 29 C.F.R § 1614.105, which requires
that an aggrieved person must initiate contact with a counselor within 45
days of the date of the mater alleged to be discriminatory or, in the case
of a personnel action, within 45 days of the effective date of the action.
A review of the record reveals that the Office of Civil Rights and
Liberties recorded the initial contact date as August 23, 2010,
which is beyond the 45-day limitation period. Complainant maintains
that she timely contacted the Office on August 20, 2010. In support,
Complainant submitted an email that she claims she sent to the Office
of Civil Rights and Liberties inquiring into whether it had received her
complaint regarding her separation from duty. The Commission notes that
the EEO complaint processing regulations at 29 C.F.R. Part 1614 do not
expressly address or define service by electronic mail. Nonetheless,
the record indicates that the Office informed Complainant that it had
no record of receiving any documents from Complainant on this date.
The Commission notes that Complainant produced no evidence of any of the
claimed documents she sent to the Office of Civil Rights and Liberties on
August 20, 2010. In addition, the Office of Civil Rights and Liberties
noted in the Initial Contact Sheet that Complainant claimed that she
emailed her complaint and that “her cell phone recorded 08/22/10 at
approx 10:30 PM Colorado time.” The Office indicated that it did not
receive any messages from Complainant on that date.
Additionally, the EEO Counselor’s Report indicated that August 23,
2010, was the date of Complainant’s initial contact. Most notably,
in her formal EEO complaint, Complainant listed August 23, 2010, as the
date that she contacted an EEO counselor. Thus, the Commission finds
that the record evidence does not support Complainant’s claim that
she contacted an EEO counselor with the intent to pursue the EEO process
prior to August 23, 2010.
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. Dep’t of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t
of Def., EEOC Request No. 05920506 (Aug. 25, 1992). In addition, in
Ericson v. Dep't of the Army, EEOC Request 05920623 (Jan. 14, 1993),
the Commission stated that “the Agency has the burden of providing
evidence and/or proof to support its final decisions.” See also
Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992).
The Commission finds that the Agency has fulfilled its burden in the
instant case. Thus, after careful review of the record, the Commission
finds that the Agency's dismissal for untimely EEO Counselor was proper.
Accordingly, the Agency’s decision dismissing Complainant's complaint
for untimely EEO Counselor contact 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 (Nov. 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
February 22, 2012
Date
2
0120111925
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013