01985300
06-16-1999
Lorna D. Fitzgerald, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Lorna D. Fitzgerald v. Department of the Air Force
01985300
June 16, 1999
Lorna D. Fitzgerald, )
Appellant, )
)
v. )
) Appeal No. 01985300
F. Whitten Peters, ) Agency No. SP1C-98-004
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 June 5, 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.
Appellant contacted an EEO counselor on March 31, 1998 regarding
allegations of discrimination. Specifically, appellant alleged that
she was subjected to discrimination on the bases of race (Filipino)
and national origin (Filipino) when she was not given "equitable" work
hours and a resignation document was falsified. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, on May 7,
1998 appellant filed a formal complaint.
The agency dismissed appellant's complaint for failure to timely contact
an EEO counselor. The agency determined that the NAFI Notification
of Personnel Action for her resignation was dated January 14, 1998 and
effective January 6, 1998. Appellant did not contact an EEO counselor
until seventy-six (76) days later, well beyond the forty-five (45)
day time limitation. In addition, the FAD noted that in her complaint
appellant stated that she did not file a complaint earlier because she
"felt it best to let sleeping dogs lie."
On appeal, appellant argues that she did not receive notification of her
resignation "until sometime in early to mid February." She also notes
that she first tried to address the issue informally through the chain
of command. In addition, she contends that she was unaware of her rights
and the time limits until she met with the EEO office.
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 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.
The Commission finds that the agency properly dismissed appellant's
complaint for failure to timely contact an EEO counselor. The record
reveals that appellant reasonably suspected discrimination weeks before
she contacted the EEO office and she simply chose not to take action.
In her complaint appellant states that as soon as she started working
at the Officer's Club, in November 1997, she "felt as though [she]
was being treated as a second class employee...." She contends that
she did not file a complaint in February, when she allegedly received
confirmation of her resignation, because she was attempting to transfer
to the NCO Club.
On appeal, appellant states that rather than immediately filing a
complaint she "chose to do the honorable thing" by attempting to address
the problem informally. This Commission has previously held, however,
that the use of internal agency procedures to resolve a complaint does
not toll the limitations period for initiating an EEO complaint. See
Williams v. USPS, EEOC Request No. 05910291 (April 25, 1991).
Appellant also argues, on appeal, that she was unaware of the EEO
time limits. The agency has provided an affidavit, from the Chief of
the Human Resources Office, stating an EEO poster is on display in the
HRO office where appellant has conducted business on several occasions.
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).
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby 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. 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 16, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations