0120103476
01-05-2012
Freddie C. Taylor, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Freddie C. Taylor,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120103476
Agency No. HS-10-ICE-006120
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 22, 2010, 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.
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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Assistant Agent-in-Charge at the Agency’s Office of Investigations -
Baltimore Office in Baltimore, Maryland. On June 7, 2010, Complainant
filed a formal complaint alleging that the Agency subjected him to
discrimination on the basis of race (African-American) when:
1. On May 8, 2009, the Agency informed him that he would be transferred
from the Office of the Assistant Secretary. Complainant was not
transferred until October 2009;
2. On June 1, 2009, he became aware that the Agency did not select him
for the position of Deputy Special Agent-in-Charge (DSAC) in the Office
of Investigations, Baltimore, Maryland;
3. Subsequent to June 1, 2009, he became aware the Agency created a
second DSAC position in the Office of the Washington SAC, but did not
offer him the position. Shortly thereafter, the Agency eliminated one
of the two DSAC positions in that office; and
4. On October 14 and 26, 2009, the Agency advised Complainant that he
would not be considered for placement into the position of DSAC, in the
Office of Investigations, in Baltimore, Maryland.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2)
for untimely EEO counselor contact. The Agency determined that the
alleged incidents occurred between May and October 2009; however,
Complainant’s initial contact with the EEO Counselor occurred
on February 17, 2010, at least 69 days past the 45-day deadline.
As Complainant provided no persuasive justification for tolling the
time limitation, the Agency dismissed the complaint for untimely EEO
counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he did timely initiate contact
with the EEO counselor. Complainant submits emails between he and
the Agency’s Chief Diversity Officer beginning on November 9, 2009,
establishing the continuous dialogue he had with the Agency’s EEO
Office. Complainant notes that he attempted to resolve the matter in the
most expedient and non-adversarial manner at various managerial levels,
including several meetings with management officials between October 4,
2009 and January 4, 2010. In addition, Complainant claims that he did
not know he was not selected for the DSCA position until January 17,
2010, when the position was filled. Accordingly, Complainant requests
that the Commission reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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.
The record establishes that all of the alleged incidents occurred between
May and October 2009. In his formal complaint, Complainant claimed that
he learned on October 26, 2009 that his selection for the DSAC position
was “off the table” and that the Agency did not feel “bad enough to
select him as DSAC Baltimore.” Thus, the record supports a finding that
Complainant had, or should have had, a reasonable suspicion of unlawful
employment discrimination at that time. Further, the record reveals
that Complainant attempted to pursue a resolution to the matter outside
of the EEO process. After several failed meetings with management from
October 2009 through January 2010, Complainant decided to contact an EEO
counselor to begin the EEO process on February 17, 2010, which is 69 days
beyond the forty-five (45) day limitation period. As a result, all four
claims were properly dismissed for untimely EEO counselor contact.
As to Complainant’s contentions regarding his contact with the
Agency’s Chief Diversity Officer, the Commission notes that it
is well-settled that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected
to the EEO process and exhibit an intent to begin the EEO process.
See Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996).
EEO Counselor contact, for purposes of tolling the time limit, requires
at a minimum that the complainant intends to pursue EEO counseling when
he initiates EEO contact. See Snyder v. Dep’t of Def., EEOC Request
No. 05901061 (Nov. 1, 1990); Menard v. Dep’t of the Navy, EEOC Appeal
No. 01990626 (Jan. 5, 2001), request for reconsideration denied, EEOC
Request No. 05A10279 (May 9, 2001). In the instant case, the record
reveals that Complainant began communicating with the Chief Diversity
Officer as early as November 9, 2009. However, the emails reveal that
Complainant was simply providing the Chief Diversity Officer updates about
his requests to meet with management officials. The record contains no
evidence that Complainant exhibited any intent to pursue the EEO process
prior to February 17, 2010. On appeal, Complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the Agency's
final decision dismissing Complainant's complaint 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:
______________________________ January
5, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
2
0120103476
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013