01992003_r
12-14-2001
Lorraine K. Wallace, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Lorraine K. Wallace v. Department of the Air Force
01992003
December 14, 2001
.
Lorraine K. Wallace,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01992003
Agency No. AL-900-99-0311
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 10, 1998, dismissing her complaint alleging
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In her complaint, complainant claimed that her supervisors subjected
her to sexual harassment and harassment on the bases of race, sex, and
in reprisal for prior protected actdivity. In support of the sexual
harassment claim, complainant avers that a male supervisor said �All
women are psycho� and also referred to women as �ditze�and made other
statements demeaning to women. In support of her harassment claim,
complainant avers that her supervisor questioned her ability and pressured
her to perform duties outside of her position description.
Additionally, complainant claims that the agency failed to process
a reclassification of her position dating back to 1991. Specifically,
complainant claims that the agency initially mis-classified her job in a
classification series which precluded career advancement, and has failed
to change the classification as promised, or otherwise promote her to
a GS-9 position. Complainant further avers that an agency letter dated
July 14, 1998, indicated that special efforts were planned to implement
reclassification processing of the positions of two white males, but
that complainant's long overdue reclassification was not referenced in
the letter. Complainant claims that this letter is proof of on-going
discrimination against her.
The agency dismissed the harassment claims and the reclassification claim
on the grounds of untimely EEO Counselor contact. Specifically, the
agency determined that complainant initially contacted an EEO Counselor
on September 1, 1998, and that despite a request for clarification,
complainant failed to provide evidence showing that any identified
incidents of harassment occurred within 45 days of her EEO Counselor
contact. Moreover, the agency determined that complainant's disagreement
with the reclassification of her position had been on-going for many
years, and that complainant knew that the agency declined to reclassify
her position in June 1996, and knew that this is the reason that her
position was not referenced in the July 14, 1998 letter, which identified
only those positions slated for re-classification, but not yet processed.
On appeal, complainant claims that the agency continues to deliberately
block her chances for promotion. In response, the agency notes that
complainant raised these same claims in prior complaints, and asks
that the Commission affirm its dismissal on the grounds of untimely EEO
Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires that complaints of
discrimination should be brought to the attention of the EEO 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.
Here, after reviewing the EEO Counselor's report, we conclude that
complainant's date of initial EEO contact is August 20, 1998, and not
September 1, 1998, as claimed by the agency. According to the Counselor's
report, complainant first contacted the EEO Counselor on the earlier
date, who advised complainant to return to further pursue the matter
after obtaining more specific information. Complainant did so on the
later date, filing an �informal� complaint at that time. Given this
set of facts, we find that August 20, 1998, is the date of initial EEO
Counselor contact, and we base the following analysis using August 20,
1998, as the date of initial EEO Counselor contact.
Regarding complainant's harassment claim, we concur with the agency that
the identified incidents occurred years prior to 1998, such that they
must be deemed untimely.<1> However, regarding complainant's sexual
harassment claim, her November 5, 1998 response to the agency's request
for additional information reflects that a named supervisor called women
�ditze� and made other demeaning statements, throughout July 1998, and
that she reported this conduct to no avail. Based on this statement,
we find that complainant's EEO Counselor contact regarding the sexual
harassment claim is timely. Nonetheless, we find that this claim must
be dismissed on the grounds of failure to state a claim. See 29 C.F.R.
� 1614.107(a)(1). Specifically, we find that the identified incidents,
which consist of only occasional remarks made by the supervisor, are not
sufficiently severe or pervasive to create a hostile work environment
under the applicable legal standards. Therefore, we conclude that
complainant fails to set forth an actionable claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Accordingly, for the reasons set forth above, we AFFIRM the agency's
dismissal of complainant's harassment claims.
Regarding complainant's reclassification claim, we find that complainant
contends that she continuously maintains that her position should be
classified in another job classification series, based on the actual work
she performs, and that this change would greatly enhance her potential for
promotion. However, the record reflects that �Civilian Personnel� made a
determination in June 1996 that complainant's current job classification
was proper. Accordingly, while complainant may continue to voice
dissatisfaction with this determination, we find that she knew that the
agency formally denied her request for reclassification in June 1996,
and so had to initiate EEO Counselor contact within 45 days in order to
be timely here. See 29 C.F.R. � 1614.107(a)(2); Howard, supra.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
dismissal of complainant's reclassification claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. 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
December 14, 2001
__________________
Date
1We note that Commission records confirm that complainant raised this same
matter in a prior EEO complaint, and that the Commission affirmed the
agency's determination of no discrimination. See Wallace v. Department
of the Air Force, EEOC Appeal No. 01951214 (May 27, 1997); request
for reconsideration denied, EEOC Request No. 05970881 (May 6, 1999).
However, because the agency does not address dismissal of this claim on
these alternative grounds, we shall not further address it herein.