01993386
01-19-2000
Patricia A. Kinkle, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Patricia A. Kinkle, )
Complainant, )
)
v. ) Appeal No. 01993386
) Agency No. MJHL990003
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On March 16, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. <1> In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of disability when the Misawa Veterinary Clinic terminated
her employment on March 12, 1998, and her request for reinstatement was
denied on April 20, 1998.
In its February 24, 1999 FAD, the agency dismissed complainant claim
pursuant to EEOC Regulations for failure to contact an EEO Counselor
within forty-five days of the discriminatory event or effective date
of the personnel action. Specifically, the agency determined that
complainant's December 4, 1998 initial EEO Counselor contact was more
than forty-five days after her March 12, 1998 termination and April 20,
1998 request for reinstatement, and was thus untimely.
On appeal, complainant submits her December 4, 1998 initial letter to
an EEO Counselor, which contends that the agency failed to follow its
own procedures in dealing with her allegation of discrimination in a
previously filed grievance. Although complainant's letter acknowledges
that her initial contact letter was untimely, she asserts that the
allegation of discrimination regarding her termination should have
been referred to �the base Chief EEO Counselor.� Complainant's letter
specifically claims that the agency failed to follow �AF Man 34-310,
Chapter 9, paragraph 5," which states that if an employee alleges
discrimination in connection with an appeal or grievance, �the official
then considering the appeal or grievance stops the proceedings, refers
the allegation of discrimination to the installation Chief EEO Counselor,
and notifies the employee of the referral in writing.�
The agency has not responded to complainant's allegations on appeal.
We note that the record does not contain a copy of complainant's grievance
or the agency manual referenced by complainant (�AF Man 34-310").
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 instant case, we find that there is insufficient information in
the record to make a decision regarding the timeliness of complainant's
initial EEO Counselor's contact. While complainant asserts that her
previously filed grievance contained her claim that her termination was
discriminatory and should have been referred to the base EEO Counselor
for consideration under published agency procedures, there is no evidence
in the record regarding her contention. As such, we are unable to make
a determination of the timeliness of complainant's EEO contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is hereby VACATED. The case is REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall supplement the record with any grievance filed by
complainant regarding her termination, and any written agency policy or
procedure in place at that time, including �AF Man 34-310, Chapter 9,�
regarding the processing of allegations of discrimination in connection
with an appeal or grievance.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall undertake a supplemental investigation which
shall include, as applicable, a determination of the dates complainant's
grievance was filed, reviewed, and decided, as well as a determination of
complainant's knowledge of the EEO process, constructive or otherwise, at
the time of her termination and denial of her request for reinstatement.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing or a new FAD regarding
complainant's complaint.
A copy of the agency's notice of processing or new FAD must be sent to
the Compliance Officer as referenced below.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
January 19, 2000
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:
_______________ __________________________
Date Equal Employment Assistant1On 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.