Bernadette A. Ricketts, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01995107 (E.E.O.C. Sep. 14, 1999)

01995107

09-14-1999

Bernadette A. Ricketts, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Bernadette A. Ricketts v. Department of the Air Force

01995107

September 14, 1999

Bernadette A. Ricketts, )

Appellant, )

)

v. ) Appeal No. 01995107

) Agency No. MNIL98028

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act of

1967, as amended (ADEA), 29 U.S.C. �621 et seq. The final decision was

received by appellant on June 7, 1999. The appeal was postmarked June

8, 1999. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

The record reflects that on December 9, 1996, appellant was discharged

from her agency position during her probationary period, on the grounds

of unprofessional conduct.

On November 3, 1998, appellant filed a formal complaint, alleging that

she was the victim of unlawful employment discrimination on the bases

of race, color, sex, age, and reprisal.

On June 3, 1999, the agency issued a final decision. Therein, the

agency determined that appellant alleged that she was subjected to

a hostile work environment during her employment with the agency.

The agency also determined that appellant's complaint was comprised

of thirty-seven allegations commencing on March 1, 1996, up to and

including her separation from agency employment on December 9, 1996.

These incidents included matters relating to threats; circulation of

rumors about her; denial of access to rooms in the work site; and denial

of performance appraisals. Moreover, the agency found that appellant's

complaint addresses one allegation that occurred approximately two years

after her discharge. Specifically, appellant alleged that on August

2, 1998, an agency official who previously effected her downgrade and

had previously denied her educational benefits "was sent to her present

organization . . .to advise her on current training education eligibility

and benefits."

Th agency dismissed all the allegations raised in appellant's

complaint for failure to initiate contact with an EEO Counselor in a

timely fashion. The agency noted that on September 6, 1996, appellant

contacted an agency EEO official and requested information regarding the

EEO complaint process. However, the agency determined that appellant's

initial EEO Counselor contact for the matters raised in the instant

complaint occurred on August 3, 1998.

On appeal, appellant argues that she initiated contact with an EEO

Counselor in September 1996. Moreover, the Commission notes that in her

formal complaint, appellant stated that she took a copy of correspondence

to the agency EEO office on October 19, 1996, to be "added to my initial

complaint made on 6 Sept 96," but that no one was in the EEO office at

the time she arrived.

In response, the agency argues that appellant's initial EEO Counselor

contact occurred in October 1998, and that the contact was untimely

regarding the matters raised in her formal complaint.

The record in this case contains a memorandum dated April 15, 1999,

prepared by an agency Chief EEO Counselor. Therein, the EEO Counselor

stated that on September 6, 1996, appellant visited the EEO office and

requested information regarding filing procedures. The EEO Counselor

further stated that appellant did not at that time wish to disclose the

nature of the alleged discriminatory actions; and that she was given

information relating to the EEO complaint process, including "time

frames involved for initiating and processing EEO complaints." The

EEO Counselor also noted that appellant was provided with a document

entitled "Contact With EEO Counselor, Precomplaint Form" and that she

was informed that the form had to be submitted within forty-five days of

the date of alleged discriminatory activity if she chose to pursue the

EEO complaint process. The EEO Counselor noted that appellant "never

returned to initiate a precomplaint."

The EEO Counselor also stated that appellant visited the EEO office

on August 3, 1998, and stated that she had "prior EEO activity in

September 1996;" and that the EEO Counselor informed her that she had

never submitted a pre-complaint form identifying the bases and issues

involved.

The Commission first notes that while the allegation relating to the

most recent incident of alleged discrimination (being advised on August

2, 1998, of training eligibility and benefits by an individual who had

previously effected her downgrade and denied benefits) was dismissed

for untimely EEO Counselor contact, this allegation is more properly

analyzed in terms of whether it states a claim.

EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal

of a complaint which fails to state a claim within the meaning of

29 C.F.R. �1614.103. In order to establish standing initially under

29 C.F.R. �1614.103, a complainant must be either an employee or an

applicant for employment of the agency against which the allegations of

discrimination are raised. In addition, the allegations must concern an

employment policy or practice which affects the individual in his capacity

as an employee or applicant for employment. An agency shall accept a

complaint from any aggrieved employee or applicant for employment who

believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal

sector case precedent has long defined an "aggrieved employee" as one

who suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

The Commission determines that the matter addressed in the incident of

August 2, 1998, does not reflect that appellant suffered a harm or loss

relating to a term, condition, or privilege of employment. Accordingly,

the agency's decision to dismiss this allegation was proper and is

AFFIRMED for the reasons set forth herein.

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 Ball v. USPS,

EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

Appellant argues that she initiated contact with an EEO Counselor in

September 1996, regarding the matters raised in her formal complaint.

Moreover, the record reflects that appellant also stated that she

unsuccessfully attempted to contact the agency EEO office in October

1996. While the record reflects that appellant spoke with an EEO

Counselor on September 6, 1996, the Commission finds that appellant's

discussion with an EEO Counselor on that occasion does not satisfy

the criteria for EEO Counselor contact. The record shows that the

September 1996 contact did not manifest an intention to begin the EEO

complaint process. See Floyd v. National Guard Bureau, EEOC Request

No. 05890086 (June 22, 1989). Specifically, the record contains the

statement of the Chief EEO Counselor, who acknowledged that appellant

met with her in September 1996; that appellant requested information

on EEO complaint filing procedures; that she did not wish to disclose

the nature of her complaint; and that she was advised of her rights in

the EEO complaint process, including relevant time frames. Moreover,

the Chief EEO Counselor stated that appellant was provided with a

pre-complaint form, and that she was apprized that the form was to be

submitted within forty-five days of an alleged discriminatory event if

she chose to pursue the EEO complaint process. Based on the foregoing,

the Commission determines that appellant's initial EEO Counselor contact

did not occur on September 6, 1996; that it instead occurred on August 3,

1998; and that her initial EEO Counselor contact was untimely with respect

to the thirty-seven allegations leading up to and including her discharge.

The Commission is, moreover, unpersuaded by appellant's contention that

she made a subsequent unsuccessful attempt to contact the agency EEO

office in October 1996. Other than appellant's bare assertion, there is

nothing in the record supporting this purported attempt to contact the

agency EEO office at that time. Appellant failed to present adequate

justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the

limitation period beyond forty-five days. Accordingly, the agency's

decision to dismiss the thirty-seven allegations addressing incidents

leading up to, and including appellant's December 1996 discharge,

for failure to initiate contact with an EEO Counselor in a timely fashion

was proper and is AFFIRMED.

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. �1614.604(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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

Sept. 14, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations