2020000688•EEOC Appeal 2020000688
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trevor F.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020000688 Agency No. 2019-28307-FAA-05 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 17, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Airway Transportation Systems Specialist, GS-11, at the Agency’s Fort Worth ARTCC facility in Euless, Texas. On August 1, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1.A. His SF-50, prepared May 25, 2018, which showed his change from an Airway Transportation Systems Specialist (ATSS), FV-2101-1, to an ATSS, FV-2101-H, effective February 11, 2018, was inaccurate. 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.
2020000688 2 1.B. On June 18, 2018, her was not selected for the position of Instructional System Specialist, advertised under Vacancy Announcement Number AWA-AIR-18- 0073JR-57880. 1.C. On September 27, 2018, he was not selected for the position of ATSS, advertised under Vacancy Announcement Number ASW-ATO-18-BM323-59211. 2. He was subjected to harassment (non-sexual) in reprisal for prior EEO activity when: A. He was assigned a heavy workload that was not balanced between other workers. B. In an affidavit, dated October 1, 2018, his supervisor described him as, “Complainant is not a problem employee, but he is not the most proficient technician by a large margin.” The Agency dismissed claims 1A, 2A, and 2B for stating the same claim as an earlier complaint that is pending a hearing. The Agency dismissed claims 1B and 1C, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS Claims 1A, 2A, and 2B As an initial matter, we note that the Agency failed to include a copy of Complainant’s earlier complaint which would support its dismissal of claims 1A, 2A, and 2B. Nonetheless, we take administrative notice that Complainant has a hearing pending before the Commission (docketed as EEOC Hearing Number 450-2019-00130X), and that the issues raised in 1A, 2A, and 2B were raised therein. As such, the dismissal of those claims was appropriate. However, the Agency is cautioned for the future that it needs to provided evidence to support its dismissal decisions. Claims 1B and 1C 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 record discloses that the last alleged discriminatory event occurred on September 27, 2018, but Complainant did not initiate contact with an EEO Counselor until March 6, 2019, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
2020000688 3 Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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.
2020000688 4 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 September 9, 2020 Date
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