Mary Lou Krasky, Complainant,v.Mary E. Peters, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionJan 22, 2009
0120072049 (E.E.O.C. Jan. 22, 2009)

0120072049

01-22-2009

Mary Lou Krasky, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Mary Lou Krasky,

Complainant,

v.

Mary E. Peters,

Secretary,

Department of Transportation,

(Federal Aviation Administration),

Agency.

Appeal No. 0120072049

Agency No. 2006-20824-FAA-06

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated February 6, 2007, dismissing her complaint of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.

On September 26, 2006, complainant initiated EEO Counselor contact.

Informal efforts to resolve her concerns were unsuccessful. Subsequently,

complainant filed the instant formal complaint on November 6, 2006.

Therein, complainant alleged that she was subjected to discrimination

on the bases of race, disability and sexual orientation1 when:

her selection for an Air Traffic Control Specialist (ATCT) position in

Minneapolis (Vacancy Announcement No. AGL-AT-04-71-73466) was rescinded

by the agency.

Complainant further alleged that on September 30, 2004, she was selected

for the position of ATCT in Minneapolis. Complainant alleged that her

supervisor (S1) and the selecting official agreed upon a release date

of January 2006 via email correspondence; and S1 shared the results of

this discussion with her. Complainant stated that in February 2005,

the agency announced a policy that all bids were to be cancelled due

to a large number of displaced employees. The record reflects that

the exception of the cancellation policy included all employees who

received a written offer of employment. Complainant stated that since

she did not receive a written offer, she assumed her bid was cancelled.

The record reflects that while complainant did not provide a specific

date of alleged discriminatory event, complainant stated that after being

made aware of the agency's decision to cancel the bids in February 2005,

she contacted both S1 and the manager of the Minneapolis Tower (M1),

who confirmed her anticipated transfer to Minneapolis in January 2006.

However, complainant stated that it was not until September 11,

2006, when she became aware of the "email exchange" between S1 and M1.

Specifically, complainant stated that she attended a deposition on behalf

of the agency on September 11, 2006, wherein she became aware of the

"email exchange" between the facilities in September 2004 confirming

an offer of employment and negotiated release date which she believes

constituted an official offer of employment by the selecting official.

Furthermore, complainant stated that she believed she was denied an

employment opportunity, and that she was intentionally not made aware

of the "email exchange" for discriminatory reasons.

In its February 6, 2007 final decision, the agency dismissed the instant

formal complaint on the grounds of untimely EEO Counselor contact,

pursuant to 29 C.F.R. � 1614.107(a)(2). In finding that complainant's

allegation was untimely, the agency used January 2006 as the date of the

alleged discriminatory event. Specifically, the agency determined that

complainant's September 26, 2006 EEO contact was more than forty-five

days beyond the discriminatory event, which was when her transfer did

not occur as scheduled on January 26, 2006.

On appeal, complainant argued that she had "no way to know of, and thus

no reasonable suspicion of, the misconduct of [S1] until made aware

of the existence of the 'written offer' until shown evidence of the

'written offer' when attending a deposition on the behalf of the FAA on

September 11, 2006."

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.

The Commission notes that in her complaint, complainant stated that she

was selected for the ATCT position in Minneapolis and was advised by

S1 "that a release date from San Jose of January 2006 was established

between San Jose Tower and Minneapolis Tower...I spoke several times

with the manager of Minneapolis Tower and was told he had selected me,

that this was a 'firm' offer, and that I would still be transferring

to Minneapolis in January 2006." We note that complainant, on appeal,

argued that she did not have reasonable suspicion of unlawful employment

discrimination until September 11, 2006, when she became aware of the

existence of what she believes was a written offer of employment during

a deposition. We are not persuaded by this argument. Rather, we find

that complainant had, or should have had, a reasonable suspicion of

unlawful employment discrimination on January 26, 2006, when her transfer

did not occur as scheduled despite her prior conversations with agency

officials confirming that she had received a "firm" offer. Therefore,

we find that complainant failed to provide sufficient justification for

waiving or tolling the time limitation. The agency's decision to dismiss

the instant complaint for untimely EEO counselor contact was proper.

However, we note that by facsimile to the agency dated November 17, 2006,

complainant requested that her complaint be amended to include a claim

that she was discriminated against on the basis of reprisal for filing

her EEO complaint when, on October 26, 2006, she received a Letter of

Reprimand. The agency sent complainant an email dated November 17, 2006,

stating that complainant's request would be considered upon receipt of the

EEO Counselor's Report. It is clear from the record that the agency did

not address complainant's request to amend her complaint to include the

new claim. Therefore, we direct the agency to treat complainant's Letter

of Reprimand allegation as a new EEO complaint and process it accordingly.

See 29 C.F.R. � 1614.106.

Accordingly, the Commission AFFIRMS the agency's final decision dismissing

the instant complaint for untimely EEO Counselor. However, we REMAND

complainant's October 26, 2006 Letter of Reprimand allegation to the

agency for further processing in accordance with the Order set forth

below.

ORDER (E0408)

The agency is ordered to process the remanded claim (Letter of Reprimand)

in accordance with 29 C.F.R. � 1614.108 et seq. The agency shall

acknowledge to the complainant that it has received the remanded claim

within thirty (30) calendar days of the date this decision becomes final.

The agency shall issue to complainant a copy of the investigative file

and also shall notify complainant 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 complainant requests a final decision without a hearing, the

agency shall issue a final decision within sixty (60) days of receipt

of complainant's request.

A copy of the agency's letter of acknowledgment to complainant 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 (K0408)

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 77960,

Washington, D.C. 20013. 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 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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, D.C. 20013. 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 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 (Z0408)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 22, 2009

__________________

Date

1 A claim of discrimination based on sexual orientation is not within

the Commission's jurisdiction.

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0120072049

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120072049

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