01991879
11-04-1999
Barbara L. Lockett, Appellant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Barbara L. Lockett v. Department of the Air Force
01991879
November 4, 1999
Barbara L. Lockett, )
Appellant, )
)
v. ) Appeal No. 01991879
) Agency No. AL900990304
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On December 31, 1998, appellant filed a timely appeal from the agency's
December 4, 1998 final decision (FAD), which partially dismissed
appellant's November 5, 1998 formal EEO complaint for untimely EEO
Counselor contact, pursuant to 29 C.F.R. �1614.107(b), in pertinent part.
We accept appellant's appeal pursuant to EEOC Order No. 960, as amended,
and, for the reasons set forth below, find no reversible legal error in
the FAD. Appellant's arguments on appeal do not persuade us to reach
contrary conclusion.
The FAD accepted for investigation appellant's allegation that,
for prohibited reasons, "she received a notice of separation from her
position as Club Operations Assistant at the Non-Commissioned Officers'
Club dated 22 September 1998."
The FAD dismissed appellant's allegation pertaining to her reassignment
"from the position of caterer at the Officer's Club to the position
of Club Operations Assistant effective 5 October 1997." The FAD found
that appellant's initial EEO contact, of September 29, 1998, was well
beyond the applicable time limitation of 45 days, as set forth at 29
C.F.R. �1614.105(a)(1).
We agree. The Commission finds that a person in appellant's situation
would have reasonably suspected discrimination months before appellant's
initial EEO contact. See Cochran v. U.S. Postal Service, EEOC Request
No. 05920399 (June 18, 1992). We are not persuaded by appellant's
assertion on appeal in the present case that, in effect, she did not
suspect discrimination until the agency issued its notice of separation
to her. Appellant herself states on appeal that the named manager,
who issued her both the notice of reassignment and notice of separation,
had met with management before her transfer "several times concerning his
endeavor to remove me." Further, we find, from a lengthy and detailed
"Final" EEO Counselor's report, albeit pages at the end appear to be
missing,<1> that the named manager had told appellant in April 1997,
that "you have gotten old and set in your ways." In this regard, we note
that one of the bases of alleged discrimination in this case is age,
pursuant to the Age Discrimination in Employment Act (ADEA) of 1967,
as amended, 29 U.S.C. �621 et seq.<2>
Having reviewed the entire record, the arguments on appeal, including
those not expressly addressed herein, and for the foregoing reasons,
the Commission hereby AFFIRMS the FAD. However, appellant may use the
dismissed allegation as background evidence in support of her separation
claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
11/04/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Commission reminds the agency of its obligation to provide a complete
record. See Hines v. U.S. Postal Service, EEOC Appeal No. 01923566 (May
12, 1993). In the present case, however, viewing the record as a whole,
coupled with appellant's arguments on appeal, the Commission find the
record sufficient.
2The Commission notes that, although appellant had alleged harassment, she
cited in her formal EEO complaint only the two incidents, approximately
one year apart, that were defined in the FAD and that are the subject
of the instant appeal.