June 20, 2011

Federal Trial Court Holds That TSA Ombuds is Not Agent for Notice

Last week, the U.S. District Court in Portland, OR dismissed a employment discrimination suit filed by a former employee of the Transportation Security Administration. Regulations establish several pre-filing administrative prerequisites including that the plaintiff show contact with an equal employment opportunity counselor. In this case, however, the plaintiff called only the TSA Ombudsman, the EEOC, and the TSA Human Resources department. The court found that was insufficient and dismissed the case.

The court's decision stated:
The question in the instant case is whether a phone call to the TSA Ombudsman, the EEOC, or the TSA Human Resources department satisfies the requirement that plaintiff contact an EEO counselor. The cases clearly hold that contact with the agency's designated EEO counselor is not required. But, the cases also have not gone so far as to allow contact with any agency official or any official outside the agency. Here, even assuming plaintiff's phone records were admissible, plaintiff's contacts with an agency ombudsman and human resources department are not contacts with an agency official logically connected to the EEO process. Additionally, contacting the EEOC, an entirely separate agency, is not a contact with the a gencyat issue. Thus, I agree with defendant first that plaintiff fails to submit admissible evidence on the issue, and second, that even if I considered the evidence, it does not create an issue of fact as to plaintiff's contact with a TSA official logically connected to the EEO process, on or before May 27, 2005.
The court therefore confirmed that the TSA Ombuds was not an agent for notice regarding EEO complaints and did not need to consider any evidence regarding the alleged contact with the Ombuds. (Tocci v. Napolitano, 2011 U.S. Dist. LEXIS 64003 (D. Or. June 14, 2011), Lexis sub. reqd.)

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