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