0120081377
12-03-2008
Sheila A. Adcox, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Sheila A. Adcox,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081377
Agency No. 9X1M08001
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 17, 2008, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the bases
of sex (female), disability (breast cancer), age (59 )and reprisal for
prior protected EEO activity when:
a. On August 3, 2007, complainant's supervisor signed her request for
FMLA two months after her initial request;
b. From July 30, 2007 to August 3, 2007, complainant's supervisor gave
her the "runaround" about reviewing her Official Personnel File (OPF);
c. On July 29, 2007, complainant's supervisor told her she could not
review her OPF;
d. On July 27, 2007, complainant received a letter of counseling regarding
her usage of unscheduled leave;
e. On June 1, 2007, complainant's supervisor did not complete an annual
appraisal for complainant;
f. On June 11, 2007, complainant's supervisor requested proof of a medical
procedure from the Health Center before approving complainant's request
for leave;
g. On May 18, 2007 and June 28, 207, a co-worker was allowed to
sign complainant's disability income forms which contained private
information;
h. On April 18, 2007, complainant's supervisor never responded to
complainant's request for 55 hours of advance sick leave;
i. At some time prior to April 2007, complainant alleges that her
supervisor called complainant's doctor attempting to void complainant's
HIPAA rights by asking questions about complainant's pending surgery; and
j. In March 2007, complainant's supervisor commented that complainant
"didn't need a nipple anyway."
The agency dismissed complainant's complaint in its entirety for various
procedural deficiencies including failure to state a claim, mootness
and for failing to timely contact an EEO Counselor. Upon review of
the record herein, the Commission finds that complainant's complaint is
appropriately dismissed as untimely in accordance with EEOC Regulation
29 C.F.R. � 1614.107(a)(2) for failure to timely seek EEO counseling.
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 record indicates that complainant contacted an EEO Counselor on
September 24, 2007 regarding her concerns. However, the record further
discloses that the events described in claims a through j occurred
beginning from March 2007 through August 2007; more than 45 days
prior to complainant's EEO counselor contact. On appeal, complainant
alleges that she contacted the EEO office by telephone in late July 2007,
however, other than her bare assertion; complainant does not provide the
Commission with persuasive evidence of her alleged contact. In addition,
EEO contact in July 2007 would not render complainant's claims timely.
Also in her statement on appeal, complainant alleges that the events
described in her complaint demonstrate a pattern of ongoing of harassment.
However, upon review, the Commission finds that the incidents alleged
in complainant's complaint describe discrete acts, with the degree of
permanence which triggered complainant's duty to act.
In that regard, we find therefore, that the agency's decision dismissing
complainant's complaint based on untimely counselor contact was proper.
Accordingly, the agency's decision is affirmed for the reasons set
forth herein.
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 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 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 (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
December 3, 2008
__________________
Date
2
0120081377
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081377