Jacqueline Woodward, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01986622_r (E.E.O.C. Sep. 14, 1999)

01986622_r

09-14-1999

Jacqueline Woodward, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Jacqueline Woodward, )

Appellant, )

)

)

v. ) Appeal No. 01986622

) Agency No. RJOJ98103

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

______________________________)

DECISION

On September 1, 1998, appellant filed a timely appeal of an August 13,

1998 final agency decision, which was received by her attorney on August

17, 1998, dismissing her complaint, pursuant to 29 C.F.R. ��1614.107(a)

and (b), for failure to state a claim and due to untimely EEO Counselor

contact.

In its final decision, the agency identified the allegations of

appellant's July 16, 1998 complaint as whether appellant was discriminated

against based on her age (50) when on June 6, 1998, she received a copy

of an agency official's letter dated June 1, 1998, which was sent to a

Congressman in response to his inquiry concerning appellant, stating

that she was �senior in terms of age and length of service�; and she

believed that her age could have been a determining factor when an

January 8, 1998, she was offered early retirement because of position

abolishment when her position in the 12th Communication Squadron (CS)

was abolished. The agency stated that the June 1, 1998 statement was a

comment, unaccompanied by any action and, thus, failed to state a claim.

The agency also indicated that the alleged job abolishment took place

on November 15, 1997, and appellant was notified of the subject action

on January 8, 1998, but she did not contact an EEO Counselor until June

16, 1998. The record indicates that appellant has been moved to a new

position within the agency after the abolishment at issue.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of

an alleged discriminatory personnel action.

The Commission has adopted a �reasonable suspicion� standard (as opposed

to a �supportive facts� standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

should reasonably suspect discrimination, but before all the facts that

would support a charge of discrimination have become apparent.

Upon review, we find that appellant knew or should reasonably have

suspected discrimination when she received the agency's January

8, 1998 letter concerning her eligibility for discontinued service

retirement based on position abolishment. In that letter, appellant was

informed that her position would be abolished and she met the �age and

service requirements� for discontinued service retirement. During EEO

counseling, appellant indicated that her age might have played a part

in the agency's decision to abolish her position because the January

8, 1998 letter stated that she was eligible to apply for discontinued

service retirement. Furthermore, in her formal complaint, appellant

alleged that she believed that her age could have been a determinating

factor in her position abolishment based on the June 1, 1998 statement

and the agency's January 8, 1998 letter offering her early retirement.

The record also contains a copy of the Congressman's letter dated April

30, 1998, which was addressed to the agency, inquiring about appellant's

claim that she had been the victim of unjust discrimination at the agency

concerning her position abolishment at issue. Based on the foregoing,

we find that appellant knew or had a reasonable suspicion that she had

been discriminated against based on her age on or around January 8, 1998.

The EEO Counselor's Report indicates that appellant did not contact

an EEO Counselor with regard to the subject matter until June 9, 1998,

which was beyond the 45-day time limit set by the regulations. Thus,

appellant has not presented adequate justification for an extension of

the applicable time limit for contacting an EEO Counselor pursuant to

29 C.F.R. �1614.105(a)(2).

Accordingly, the agency's final decision is hereby AFFIRMED.<1>

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. 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:

Sept. 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 Since we

are affirming the agency's dismissal on

the grounds of untimely EEO contact, we

need not address the agency's alternative

grounds for dismissal.