Christine N. L. Hake, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 16, 1999
01986266 (E.E.O.C. Nov. 16, 1999)

01986266

11-16-1999

Christine N. L. Hake, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Christine N. L. Hake, )

Complainant, )

)

v. ) Appeal No. 01986266

) Agency No. AL900980734

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

____________________________________)

DECISION

Complainant filed the instant appeal from the agency's decision dated

July 15, 1998 dismissing a portion of complainant's complaint.<1>

The agency decision was in response to a prior Commission decision on

the instant complaint. In the prior decision, the Commission stated that

the agency had accepted ten claims for investigation. The Commission

remanded claim 1 so a determination could be made as to whether claim 1

was timely raised with an EEO Counselor under the continuing violation

theory. Claim 1 had been defined in the prior Commission decision as

follows: "[Complainant] was subjected to unspecified acts occurring

before January 5, 1997." The Commission instructed the agency to

define the incidents in question in claim 1. The Commission also

found that complainant referenced twenty-eight claims on appeal which

were incorporated into the complaint but not addressed by the agency.

The Commission instructed the agency to either accept or dismiss those

twenty-eight claims. Hake v. Department of the Air Force, EEOC Appeal

No. 01975543 (June 10, 1998).

In the July 15, 1998 decision, the agency apparently found that the

group of twenty-eight remanded claims and the pre-January 5, 1997 acts

at issue in claim 1 amounted to thirty-two alleged acts identified by the

agency as claims A - GG (the agency noted that appellant did not identify

an claim H). The agency found that four of the claims (D, V, BB, and

GG) were accepted in the agency's prior decision that was the subject

of the prior Commission decision in Hake, EEOC Appeal No. 01975543.

Complainant has not contested the agency's conclusion that it has already

accepted these four claims (D, V, BB, and GG). The agency dismissed

the remaining 28 claims for untimely EEO Counselor contact and/or

for failing to state a claim pursuant to 64 Fed. Reg. 37,644, 37656

(to be codified as and hereinafter cited as 29 C.F.R. �1614.107(a)(2)

and �1614.107(a)(1), respectively). Complainant has not challenged the

framing of the dismissed claims.

The Commission finds that the agency properly dismissed claims B, C, E -

G, I - U, W - AA, and CC, for untimely EEO Counselor contact pursuant

to �1614.107(a)(2). The Commission finds that these claims are not

timely under the continuing violation theory because complainant should

have reasonably suspected discrimination more than 45 days before she

contacted an EEO Counselor regarding these incidents.

The Commission finds that the agency properly dismissed claims A, DD,

and EE, for failure to state a claim, pursuant to �1614.107(a)(1).

In claim A complainant alleged that she was subjected to a hostile work

environment. The Commission finds that claim A is not separate and

distinguishable from the other claims in the complaint. It is therefore

unnecessary to consider this as a separate claim. Claim DD concerns

marital status discrimination which is not a protected status under laws

enforced by the EEOC. Id. Claim EE concerns Privacy Act violations.

The Commission does not enforce the Privacy Act.

Because of our disposition, we find it unnecessary to address whether

the agency properly dismissed any portion of the complaint on alternative

grounds.

The agency dismissed claim FF for untimely EEO Counselor contact.

The agency defined claim FF as follows:

Favoritism (unauthorized preferential treatment) with respect to

temporarily and permanently filling CEVR positions (Person A temporarily

assuming Person B's duties in fall 1996 when Person B became terminally

ill and permanently detailed to the position in February 1997 after

Person B died).

The Commission finds that at least a portion of claim FF may have

occurred within 45 days of complainant's initial EEO Counselor contact

on February 20, 1997. The definition of claim FF, however, is unclear.

Although complainant may be alleging a continuing failure to place

her into a CEVR position, it is not clear if there are many specific

incidents of the agency's purported failure to place complainant into

a CEVR position; or if the fall 1996 incident and/or February 1997

incident are the only incidents. Furthermore, it is unclear whether the

February 1997 incident is part of the alleged discrimination in claim

FF or is merely a result of the alleged discrimination in fall 1996.

The Commission shall remand claim FF so that the agency may contact

complainant to clarify the dates of the incident(s) in claim FF.

In summary, the agency's decision dismissing claims A - C, E - G, I -

U, W - AA, and CC - EE, is AFFIRMED. The agency's decision dismissing

claim FF is VACATED and we REMAND claim FF to the agency for further

processing in accordance with this decision and applicable regulations.

ORDER

The agency shall contact complainant to clarify the dates of the

incident(s) in claim FF. Within 60 days of the date this decision becomes

final the agency shall either issue a new decision dismissing claim FF

or issue a letter to complainant accepting claim FF for investigation.

A copy of the agency's new decision or letter to complainant accepting

claim FF for investigation shall be sent to the Compliance Officer

referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant also has

the right to file a civil action to enforce compliance with the

Commission's order prior to or following an administrative petition

for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),

and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the

right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled "Right to File A Civil Action."

29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or

a civil action on the underlying complaint is subject to the deadline

stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).

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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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:

November 16, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all Federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at WWW.EEOC.GOV.