01992796
11-08-1999
Dilek Maciver, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Dilek Maciver, )
Appellant, )
)
v. ) Appeal No. 01992796
) Agency No. KBOR98027
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On February 9, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on January 14, 1999, pertaining
to a complaint of unlawful employment discrimination pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq. The Commission accepts appellant's appeal in accordance with EEOC
No. 960, as amended.<1>
The record reflects that on September 22, 1998, appellant initiated
contact with an EEO Counselor. During the counseling period, appellant
alleged that she was being unlawfully discriminated against because of
her physical disability (Cerebral Palsy). Counseling failed and appellant
filed a formal complaint consisting of the following allegations:
(1). In April 1998, appellant's supervisor became upset and yelled
at her.
(2). On May 8, 1998, appellant's supervisor yelled at her in front of
her daughter while off duty.
(3). In June 1998, appellant received her performance appraisal which
was the lowest she had ever received.
(4). In June 1998, appellant's supervisor harassed her that she would
not pass the anti terrorism exercise.
(5). In June 1998, appellant's supervisor yelled at her for not saying
good bye before she left work.
(6). On August 2, 1998, appellant was informed that she could no longer
work alone.
(7). On or about September 10, 1998, appellant's supervisor yelled at
her and waived a pen in her face.
(8). On or about September 11, 1998 appellant sought counseling for the
above event, but was informed that nothing could be done about it.
On January 14, 1999, the agency issued a final decision (FAD). The FAD
shows the grounds the agency cited to support the dismissal of issues one
thru six. The agency dismissed the aforementioned allegations because
appellant failed to initiate timely contact with an EEO Counselor.
Alternatively, the agency dismissed allegation five on the grounds
that appellant failed to state a claim. However, the agency did accept
allegations seven and eight for investigation. It is from this decision
that appellant appeals.
On appeal, appellant, through her attorney, argues that she has been the
recipient of continuous harassment for six months preceding the above
mentioned complaint. Further, the appellant states that the agency has
failed to make a proper determination as to whether or not the dismissed
allegations are part of a continuous violation, thus warranting waiver of
the forty-five day limitation period in which to contact an EEO Counselor.
Implicit in her argument, appellant acknowledges that her initial EEO
contact for the dismissed allegations occurred more than forty-five days
after the incidents.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the case at bar, it is not disputed that appellant initiated contact
with an EEO Counselor beyond the forty-five (45) day
limitation period for allegations one thru six.<2> However, within
appellant's complaint, she alleged a series of events which allegedly
occurred from April 1998 through September 1998. Specifically, appellant
alleged that she was subjected to continuous harassment. Instead of
treating these events as incidents of the claim of harassment, the
agency looked at them individually. According to Meaney v. Department
of the Treasury, EEOC Request No. 05940169 (November 3, 1994), an agency
should not
ignore the "pattern aspect" of a complainant's allegations and define
the issues in a piecemeal manner where an analogous theme unites the
matter complained of. Here, the instant allegations one thru eight
are united because of the claim of harassment. Therefore, even though
allegations one thru six may be dismissed for timeliness reasons, the
agency must consider and investigate such in developing the overall
claim of harassment. Furthermore, the agency in its FAD has failed to
address appellant's allegation that her supervisor would explain duties
to her in which other employees could perform but, she could not.
Consistent with our discussion herein, the final agency decision is
REVERSED and appellant's complaint of harassment is REMANDED to the
agency for further processing consistent with the Order below.
ORDER
The agency is ORDERED to process the remanded complaint as a claim of
ongoing harassment and to investigate the aforementioned claim that has
been subsequently excluded by the agency in their FAD in accordance with
29 C.F.R.�1614.108. The agency shall acknowledge to
the appellant that it has received the remanded complaint within thirty
(30) calendar days of the date of this decision becomes final. The agency
shall issue to the appellant a copy of the investigative file and also
shall notify appellant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply
with the Commission's order, the appellant may petition the Commission
for enforcement of the order. 29 C.F.R. �1614.503 (a). The appellant
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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g).
Alternatively, the appellant 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. �� 1614.408 and 1614.409.
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 appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1 Since the agency did not supply a copy of a certified mail
return receipt or any other material capable of establishing
the date appellant received the agency's final decision, the
Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.
2The Commission will not address the continuing violation theory on
appeal because the within allegations are not a series of related
discriminatory acts. See Reid v. Department of Commerce, EEOC Request
No. 05970705 (April 22, 1999); McGivern v. U.S. Postal Service, EEOC
Request No. 05901150 (December 28, 1990).