01993149
01-12-2001
Christina M. Minakais, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Christina M. Minakais v. Department of the Air Force
01993149
1/12/01
.
Christina M. Minakais,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01993149
Agency No. RF0D09022
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated February 23, 1999 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.<1> In her complaint, complainant alleged that she was subjected
to discrimination on the basis of reprisal (prior EEO activity) when:
(1) the Human Resources Officer failed to conduct an unbiased desk
audit of complainant's position; (2) the Human Resources Officer
and complainant's supervisor created a false position description
and intentionally prevented complainant from attending a conference;
(3) the Human Resources Manager and complainant's supervisor failed to
recognize complainant as the Assistant Club Manager; and (4) the Human
Resources Manager and complainant's supervisors carried out a threat
made by complainant's prior supervisor that she would not be promoted.
The record reveals on January 9, 1997, complainant engaged in prior
EEO activity when she filed a formal complaint alleging that her then
supervisor sexually harassed her. The complaint eventually settled, and
complainant's supervisor departed complainant's facility in January 1998.
Complainant alleges in the instant complaint that the above actions were
taken in reprisal for filing a sexual harassment claim against her prior
supervisor.
On February 23, 1998, the agency issued a final decision dismissing the
complaint pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)((2), for
failure to make timely contact with an EEO Counselor.<2> Specifically,
the agency found complainant contacted an EEO Counselor in the instant
case on June 12, 1998. However, complainant failed to reference any
dates with respect to her claims of discrimination.
As for complainant's first claim, the agency determined that complainant
received the results of her desk audit between April 1 and 3, 1998.
Thus, complainant's EEO contact on June 12, 1998 was not timely since
more than 45 days had passed between complainant's receipt of her desk
audit results and her contact with an EEO Counselor.
Regarding complainant's claim that the Human Resources Officer and
complainant's supervisor created a false position description and
prevented complainant's attendance at a conference, the agency found
that records supplied by both complainant and the agency revealed that
complainant was assigned to the �Club Manager, NF-III, Rocket Sports�
position. Furthermore, the agency found that the conference to which
complainant wished to attend, but was allegedly not permitted to attend,
was scheduled to occur subsequent to complainant's formal complaint, in
August 1998. The agency made no other findings related to these issues.
Complainant also alleged that her supervisor and the Human Resources
Officer failed to recognize her as the Assistant Club Manager.
In response to complainant's claim, the agency found complainant failed
to provide a date referencing a personnel decision.
Finally, complainant alleged that her supervisors and the Human Resources
Officer �made good on the threat by [complainant's former supervisor]
that she would not be promoted because of what she did to him.� In
response, the agency addressed the merits of the claim by stating that
complainant's former supervisor departed her facility well before the
actions occurred herein.
On appeal, complainant makes numerous contentions. She argues that only
the initial results of her desk audit were presented to her on March 31,
1998, whereas the final results of the desk audit were presented to her
on June 5, 1998. She also claims that she initially contacted an EEO
Counselor in April following the results of her desk audit. However,
she did not pursue the matter because she was told the results of her
desk audit would be �reconsidered.� As for her claim that she was denied
the opportunity to attend a conference, complainant argues the actual
date of the
conference is not determinative. Instead, she claims that the
determination of who would attend the conference occurred in June 1998.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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 a statement attached to the EEO Counselor's Report, the Human Resources
Officer who conducted complainant's desk audit stated that on April 1,
1998, she gave complainant the results of her desk audit, position guide,
and appeal rights related to the results of the desk audit. Furthermore,
she stated that she did not recognize complainant's position as the
�Assistant Consolidated Club Manager� at the time of the desk audit
because complainant's official job title was �Club Manager.�
Correspondence and memorandum from complainant in the file contain
statements that reveal complainant was not pursuing the desk audit matter
with the EEO Office, rather she was waiting to see if management would
reconsider the desk audit decision. In light of these statements, as well
as complainant's failure to establish she was unaware of the time limits
in which to contact an EEO counselor, we find complainant failed to make
timely EEO contact with respect to the claims related to her desk audit,
position description, and position title. All of these claims appear to
stem from complainant's disagreement with the results of her desk audit,
as well as her dispute with management as to the nature of her position.
Complainant had an obligation to timely pursue the matter with an EEO
Counselor, and complainant's own correspondence indicates that she
decided not to pursue the matter within the EEO process.
As for complainant's claims that she was denied the opportunity to
attend a conference, and that she was denied a promotion in May 1998,
we find the agency failed to properly address the claims and, therefore,
we remand the issues to the agency for investigation. Accordingly, the
agency's final decision is AFFIRMED in part and REVERSED and REMANDED
in part. The agency is directed to comply with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
1/12/01
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The agency initially issued a final agency decision dismissing the
complaint because the complaint alleged the same claim as that which
was already decided by the agency or the Commission. On February 23,
1999, the agency rescinded its first final agency decision and issued
the instant final agency decision.