01982701
03-12-1999
Shirley Niles, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Shirley Niles, )
Appellant, )
)
v. ) Appeal No. 01982701
) Agency No. 9VIM98058
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and the Age Discrimination in Employment Act of
1967, as amended (ADEA), 29 U.S.C. �621 et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint, pursuant to 29 C.R.R. �1614.105(a)(1), for failure
to make timely contact with an EEO Counselor.
Appellant alleges that she was discriminated against on the bases of
sex (female) and age (44) when she was not selected for transfer to a
position at another air force base. The agency dismissed the complaint
contending that the appellant did not make initial EEO Counselor contact
until November 19, 1997, more than 45 days after her August 13, 1997,
interview for the position.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
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.
According to the EEO Counselor's report, appellant received an interview
during a recruiting visit on August 13, 1997. She complained that the
interviewer treated her very rudely and that he did not offer her save-pay
or moving expenses, although these inducements were offered to male staff
members who applied for the recruited positions. Appellant was told she
did not qualify for the position, and she left the interview without
submitting an application. Subsequently, she contacted a personnel
specialist on August 18, 1997, asking to be placed into consideration
for one of the vacancies under the current transfer recruitment effort.
The personnel specialist asked the appellant to call the next morning
when she would then be able to inform appellant about the application
procedure. When appellant called, on August 19, 1997, she was told
that she would need to complete a �job interest form�, which she did
over the phone at that time. In response to her �job interest form,�
the appellant received a letter, dated September 30, 1997, formally
rejecting her application for transfer to the position in question.
On appeal, appellant, through her attorney, provides a copy of a letter,
dated October 2, 1997, which she mailed to the Inspector General's (IG)
office regarding this matter. In the letter, she states that her rude
treatment and non-selection were due to sex discrimination. By letter
dated November 3, 1997, the IG's office informed appellant that the
matter was not within its purview and that she should seek assistance
from the personnel office or EEO office. Appellant provides a copy of
this letter, but there is no indication when she actually received it.
Thereafter, appellant initiated EEO Counselor contact on November 19,
1997. Appellant contends that her letter to the IG's office should
be construed as EEO Counselor contact because she did not know the EEO
process requirements, but nonetheless, demonstrated due diligence and
a good faith effort in pursuing her rights in this matter.
In its response, the agency does not dispute the appellant's lack of
knowledge about the EEO process up until the time she received the
IG's referral letter. Moreover, on appeal, the agency fails to provide
affidavits demonstrating placement of EEO posters or to show any other
methods of constructive notice to the appellant regarding the EEO process
prior to her receipt of the IG's letter. See Thompson v. Department
of the Army, EEOC Request No. 05910474 (Sept. 12, 1991)(citing Kale
v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir. 1988)). Instead,
the agency argues that even if the October 2, 1997, letter to the IG
could be construed as EEO Counselor contact, it was still untimely,
using August 13, 1997, as the computation date.
Appellant contends that she was not formally notified of her non-selection
until September 30, 1997, the date of the letter officially rejecting her
application, so that the time for EEO Counselor contact should be computed
from this date. We agree with the appellant that the September 30, 1997,
letter is the �official personnel action� within the meaning of the law
and regulations cited above, and it is the correct date to be used in
the instant determination. The August 13, 1997, interview was informal
and the appellant did not complete an application at that time. In fact,
according to the EEO Counselor's report, there is no record of this
interview ever occurring. We also agree with the appellant that it
is appropriate to use the date of her letter to the IG's office as the
date of initial EEO Counselor contact. On appeal, the appellant states
that she did know how to pursue her complaint under the EEO process and
thought she was pursuing her rights and remedies to the extent possible
by bringing the matter to the attention of the IG. She subsequently
contacted the EEO office within a short period of time after receiving
notice of this requirement.
Because the agency does not challenge the appellant's lack of knowledge
about the EEO process requirements prior to the notice in the IG's
letter, and because appellant contacted the EEO Counselor shortly after
receiving notice of the requirement, we find sufficient reason under
the law and regulations cited above, to extend the time limits and deem
appellant's EEO Counselor contact timely. Therefore, we find that the
agency improperly dismissed this allegation and that further processing
in accordance with this decision and applicable regulations is required.
On appeal, appellant also raises for the first time the allegation of
a continuing violation and reprisal.
Appellant is advised that if she wishes to pursue these allegations
through the EEO process, she must initiate contact with an EEO Counselor
within 15 days after she receives this decision. The Commission
advises the agency that if appellant seeks EEO counseling regarding
the new allegations within the above 15 day period, the date appellant
filed the appeal statement in which she raised these allegations with
the agency shall be deemed to be the date of the initial EEO contact,
unless she previously contacted a
counselor regarding this matter, in which case the earlier date would
serve as the EEO Counselor contact date. Cf. Alexander J. Qatsha
v. Dept. of the Navy, EEOC Request No. 05970201 (January 16, 1998).
Accordingly, we VACATE the FAD and REMAND the allegation to the agency
in accordance with this decision and the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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 appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.10.
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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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.F.R.).
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:
March 12, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations