EEOC Appeal 2020000688

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.

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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.

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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.

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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