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.