01980267
11-20-1998
Iris M. Croft, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Iris M. Croft v. Department of the Army
01980267
November 20, 1998
Iris M. Croft, )
Appellant, )
)
v. ) Appeal No. 01980267
) Agency No. BGANFO9608G0420
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The Commission finds that the agency's August 5, 1997 decision dismissing
appellant's complaint on the basis that appellant failed to contact an EEO
counselor within the 45-day time limit provided by 29 C.F.R. �1614.107(b)
is proper.
The record shows that appellant alleged that she had been discriminated
against on the bases of sex (female), mental disability (none specified),
and reprisal for prior EEO activity when: (1) hostile work environment:
since 1990-1991, she worked in a hostile work environment as contract
attorney; (2) trumped up charges: accusations were made against her
between October 1990 and April 1991; (3) threats of termination: threats
of termination including the trumped up warnings and charges brought up
by CJAG and DOC against appellant between October 1990 and April 1991;
(4)loss of promotion/advancement: personnel papers for upgrading her
GS-905-13 to GS-905-14 were passed across appellant's desk and another
male employee's desk in 1990. Subsequently, the personnel paperwork to
upgrade her position was withheld, until 1991. The upgrade was applied
to a male contract attorney; (5) intimidation/harassment/reprisal:
appellant was spoke to in a denigrating manner to undermine her role
as contract attorney. The intimidation/harassment/reprisal included
physical disability due to appellant's multiple bilateral foot surgery
with complications in 1989, and her history of congenital defect
with major surgery. Hostility included following appellant when
she walked from the CJAG office building number 1 to DOC building;
(6) continuously denied training, work assignment and work space in
1990 and 1991; and, (7) improper supervision, which included placing
appellant under DOC managers. In its final decision, the agency found
that appellant's initial EEO counselor contact on May 12, 1993, had
occurred well beyond the 45-day time limit provided by EEOC Regulations.
We agree. Appellant argues that her initial EEO counselor contact
took place in December 1992, without providing any evidence to support
her contention. Even if we accept that she contacted an EEO counselor
in December 1992, her EEO counselor contact would still be beyond the
45-day time limit. The Commission applies a "reasonable suspicion"
standard to the triggering date for determining the timeliness of the
contact with an EEO counselor. Cochran v. United States Postal Service,
EEOC Request No. 05920399 (June 18, 1992). Under this standard, the time
period for contacting an EEO counselor is triggered when the complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). On appeal, appellant
contends that she "could not report this pattern of discrimination until
I learned it had occurred". The record shows that as early as 1990 and
1991, she was aware of the alleged discriminatory events. Accordingly,
the agency's decision dismissing the complaint is AFFIRMED.
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. �l6l4.604(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 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:
November 20, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations