01984361
06-21-1999
Dennis J. Pariseau, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Dennis J. Pariseau v. Department of the Air Force
01984361
June 21, 1999
Dennis J. Pariseau, )
Appellant, )
)
v. )
) Appeal No. 01984361
F. Whitten Peters, ) Agency No. 9V1M98139
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
agency decision (FAD), dated April 15, 1998, which the agency issued
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
The appellant alleged that he was discriminated against on the basis of
his physical disability (asbestos, non-Hodgkin's Lymphoma) when:
(1) in March 1997 the Employee Relations Specialist for Retirement told
appellant that Tinker was cleaning house and getting rid of people
with medical or injury limitations, and Tinker didn't want anymore sick
people; and,
(2) on January 28, 1998 appellant became aware of Tinker's discrimination
policies when he was a witness at an EEO hearing.
The agency dismissed appellant's complaint for failure to state a claim.
Allegation 1 was also dismissed for failing to timely contact an EEO
Counselor.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of Title
VII. See Backo v. U.S.P.S., EEOC Request No. 05960227 (June 10, 1996);
Henry v. U.S.P.S., EEOC Request No. 05940695 (February 9, 1995).
In the instant case, the Commission finds that the agency properly
dismissed appellant's complaint for failing to state a claim pursuant
to 29 C.F.R. �1614.107(a). The record reveals that appellant has not
identified a present harm or loss with respect to a term, condition, or
privilege of employment. Neither the alleged comment made to appellant
nor his experience at an EEO hearing makes appellant an "aggrieved
employee".
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 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 s\he was not notified
of the time limits and was not otherwise aware of them, that s\he did
not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence s\he
was prevented by circumstances beyond his\her control from contacting
the Counselor within the time limits, or for other reasons considered
sufficient by the agency or the Commission.
The Commission also finds that the agency properly dismissed Allegation
1 for failing to timely contact an EEO Counselor. The FAD noted that
the alleged incident occurred in March 1997 and appellant contacted
the EEO office February 13, 1998, well beyond the expiration of the
45-day limitation period. Appellant does not claim that he was unaware
of the time frames for contacting an EEO Counselor or provide evidence
sufficient to establish that he only developed a reasonable suspicion of
discrimination sometime during the 45 day period preceding his counselor
contact.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's April 1, 1998 complaint.
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. 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).
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:
June 21, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations