Lorraine K. Wallace, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 14, 2001
01992003_r (E.E.O.C. Dec. 14, 2001)

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.