01986622_r
09-14-1999
Jacqueline Woodward, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Jacqueline Woodward, )
Appellant, )
)
)
v. ) Appeal No. 01986622
) Agency No. RJOJ98103
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On September 1, 1998, appellant filed a timely appeal of an August 13,
1998 final agency decision, which was received by her attorney on August
17, 1998, dismissing her complaint, pursuant to 29 C.F.R. ��1614.107(a)
and (b), for failure to state a claim and due to untimely EEO Counselor
contact.
In its final decision, the agency identified the allegations of
appellant's July 16, 1998 complaint as whether appellant was discriminated
against based on her age (50) when on June 6, 1998, she received a copy
of an agency official's letter dated June 1, 1998, which was sent to a
Congressman in response to his inquiry concerning appellant, stating
that she was �senior in terms of age and length of service�; and she
believed that her age could have been a determining factor when an
January 8, 1998, she was offered early retirement because of position
abolishment when her position in the 12th Communication Squadron (CS)
was abolished. The agency stated that the June 1, 1998 statement was a
comment, unaccompanied by any action and, thus, failed to state a claim.
The agency also indicated that the alleged job abolishment took place
on November 15, 1997, and appellant was notified of the subject action
on January 8, 1998, but she did not contact an EEO Counselor until June
16, 1998. The record indicates that appellant has been moved to a new
position within the agency after the abolishment at issue.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Upon review, we find that appellant knew or should reasonably have
suspected discrimination when she received the agency's January
8, 1998 letter concerning her eligibility for discontinued service
retirement based on position abolishment. In that letter, appellant was
informed that her position would be abolished and she met the �age and
service requirements� for discontinued service retirement. During EEO
counseling, appellant indicated that her age might have played a part
in the agency's decision to abolish her position because the January
8, 1998 letter stated that she was eligible to apply for discontinued
service retirement. Furthermore, in her formal complaint, appellant
alleged that she believed that her age could have been a determinating
factor in her position abolishment based on the June 1, 1998 statement
and the agency's January 8, 1998 letter offering her early retirement.
The record also contains a copy of the Congressman's letter dated April
30, 1998, which was addressed to the agency, inquiring about appellant's
claim that she had been the victim of unjust discrimination at the agency
concerning her position abolishment at issue. Based on the foregoing,
we find that appellant knew or had a reasonable suspicion that she had
been discriminated against based on her age on or around January 8, 1998.
The EEO Counselor's Report indicates that appellant did not contact
an EEO Counselor with regard to the subject matter until June 9, 1998,
which was beyond the 45-day time limit set by the regulations. Thus,
appellant has not presented adequate justification for an extension of
the applicable time limit for contacting an EEO Counselor pursuant to
29 C.F.R. �1614.105(a)(2).
Accordingly, the agency's final decision is hereby AFFIRMED.<1>
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:
Sept. 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 Since we
are affirming the agency's dismissal on
the grounds of untimely EEO contact, we
need not address the agency's alternative
grounds for dismissal.