0120081734
10-21-2009
Minnie L. Noble, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Minnie L. Noble,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081734
Agency No. 5X1L07013
DECISION
Upon review, we find that the agency's decision, dated January 10, 2008,
properly dismissed complainant's complaint due to untimely EEO Counselor
contact and/or for alleging dissatisfaction with the processing of a
previously filed complaint pursuant to 29 C.F.R. ��1614.107(a)(2) and (8).
In her complaint, dated July 27, 2007, complainant alleged discrimination
based on race (African American), color (black), sex (female), age
(over 40), disability, and in reprisal for prior EEO activity when:
(a) She was subjected to harassment which forced her to retire on August
31, 2006, when: her supervisor made threats to her, dates unspecified;
an official made threats to her, including shouting, "I hate to lose,
I hate to lose; I am going to get [complainant]" while pounding on a
table, dates unspecified; her manager screamed at her on July 5, 2006,
and used a derogatory racial epithet; and, the Civilian Personnel Officer
allegedly failed to provide her the correct retirement forms (disability)
on July 28, 2006;
(b) The acceptance letter for her previous EEO complaint (5X1L06019)
failed to address why her superior court case against the supervisor
was transferred to federal court in January 2007;
(c) In January 2007, the supervisor was represented in court at no cost
be federal attorneys while she was not;
(d) On February 7, 2007, the Office of Investigations and Resolutions
Division (IRD) refused to investigate her allegations of harassment and
hostile work environment against her supervisor;
(e) On the day of the IRD investigation, February 7, 2007, the
Civilian Personnel Officers gave an identified physician's evaluation
and consultation report to the IRD investigator which had been withheld
from her since June 2006; and,
(f) The Vice Wing Commander allegedly signed her initial partial dismissal
of discrimination letter (for her previous complaint number 5X1L06019),
dated February 7, 2007, which dismissed certain claims made by her.
In its decision, the agency indicated that the alleged incidents,
described in (a), ceased upon complainant's retirement on August 31,
2006, but she did not contact an EEO Counselor until April 9, 2007, which
was beyond the 45-day time limit set by the regulations. On appeal,
complainant presents no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact. It
is noted that in its decision, the agency did not identify the August
31, 2006 constructive discharge incident as a live claim. On appeal,
complainant merely raises the subject matter of her constructive discharge
and other incidents leading to that matter. A review of the September 6,
2005 formal complaint for Agency No. 5X1L06019 reveals that complainant,
among other things, alleged that she was subjected to a hostile work
environment that forced her to retire on August 31, 2006.
With regard to claims (b) and (c), although the agency dismissed these
matters due to untimely EEO Counselor contact, we find that they are more
properly dismissed for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, we note these incidents do not concern EEO
matters and are not within the jurisdiction of the Commission to address.
With regard to claims (d), (e), and (f), the alleged incidents involve
complainant's dissatisfaction with the processing of her previously filed
complaint, 5X1L0619. Therefore, they are properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(8).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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, DC 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 (S0408)
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. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
10/21/09
__________________
Date
2
0120081734
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013