01980206
10-07-1998
Christine N. L. Hake, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Christine N. L. Hake, )
Appellant, )
)
)
v. ) Appeal No. 01980206
) Agency Nos. CD1C97002
) CD1C97003
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On September 16, 1997, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) dated July 10, 1997,
pertaining to her complaints 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 Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq.<1> In her complaints,
appellant alleged that she was subjected to discrimination on the bases
of sex (female), religion (Roman Catholic/Christian), national origin
(Hispanic), and mental disability (unspecified) when:
On February 28, 1997, two of appellant's supervisors sent memoranda to
the Chief, Environmental Flight, requesting that she consider submitting
appellant to a fitness for duty determination before allowing her to
return to work;
On a date prior to April 1996, a coworker ("CW") made inappropriate
sexual comments to appellant; and
On May 22, 1997, appellant discovered that in February, March, or April
1997, CW made comments to other coworkers suggesting that appellant
made sexual advances towards him.
On July 10, 1997, the agency issued a final decision accepting allegation
(3) for investigation. The agency's final decision dismissed allegation
(1) pursuant to EEOC Regulation 29 C.F.R. �1614.107(e), for alleging a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, was discriminatory, and allegation (2) pursuant to 29
C.F.R. �1614.107(b), for failure to initiate contact with an EEO Counselor
in a timely manner. Specifically, the agency determined that because
the fitness for duty determination was never ordered, the memoranda
amounted to merely a preliminary step toward taking a personnel action.
Additionally, the agency found that appellant's May 23, 1997 initial EEO
Counselor contact was untimely with respect to allegation (2) because
it occurred more than forty-five (45) days from the date on which the
incident occurred.
The record indicates that the memoranda suggesting that appellant undergo
a fitness for duty determination were written while appellant was on leave
under the Family and Medical Leave Act. Further, the record shows that
appellant then requested Leave Without Pay, and subsequently retired
from her position with the agency. Consequently, no fitness for duty
determination was ever conducted.
The record also contains affidavits from agency EEO Counselors stating
that EEO posters containing the relevant information concerning
time limitations were present on bulletin boards in appellant's
work location. The record contains another affidavit from one of
appellant's coworkers indicating that both he and appellant received a
pamphlet during orientation which outlined the EEO process and provided
specific information on the relevant time limitations. Additionally,
the record contains an orientation checklist signed by appellant in
which she acknowledges receipt of the EEO Program informational material.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the
agency shall dismiss a complaint or a portion of a complaint that
alleges that a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory. In the instant
complaint, the record reveals that appellant was not subjected to a
fitness for duty determination. The memoranda at issue were merely
suggestions that an examination may be warranted. There is no evidence
of record that appellant sustained an injury to a term, condition, or
privilege of her employment as a result of the memoranda. Accordingly,
the agency's decision to dismiss allegation (1) for failure to state a
claim was proper.
Regarding allegation (2), the record shows that appellant did not initiate
counseling concerning this matter until May 23, 1997, more than forty-five
(45) days from when CW made the inappropriate sexual comments. Further,
the record shows that EEO posters containing the relevant time limits were
present at appellant's work location and that she received training and
orientation material in which the forty-five (45) day limitation period
for initial EEO Counselor contact was identified. We find, therefore,
that appellant had constructive knowledge of the applicable time limits.
See Santiago v. United States Postal Service, EEOC Request No. 05950272
(July 6, 1995). As appellant offered no justification sufficient to
extend the applicable time period, we find that the agency properly
dismissed allegation (2) pursuant to 29 C.F.R. �1614.107(b).
Accordingly, the agency's decision to dismiss allegations (1) and (2)
was proper and is AFFIRMED for the reasons set forth herein.
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(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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).
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:
Oct. 7, 1998
____________________________
DATE Ronnie Blumenthal, Director
1The Commission notes that pursuant to 29 C.F.R. �1614.606, the
agency consolidated appellant's two complaints for decision.
Additionally, we note that the agency was unable to supply a
copy of a certified mail return receipt or any other material
capable of establishing the date appellant received the agency's
final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) days of receipt
of the agency's final decision. See, 29 C.F.R. �1614.402.