01A14720_r
04-15-2002
Marie L. Carver, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Marie L. Carver v. Department of the Air Force
01A14720
April 15, 2002
.
Marie L. Carver,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14720
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated July 9, 2001, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant initiated EEO Counselor contact on February 7, 2001.
Informal efforts to resolve her concerns were unsuccessful. In her
complaint dated March 15, 2001, complainant alleged that she was subjected
to discrimination on the bases of race and sex when:
On or about October 15, 2000, a Colonel arrived as Director of
the DECC-St. Louis �with an agenda to clear/settle all pending EEO
complaints,� which resulted in complainant becoming the �scapegoat�;
On November 2, 2000 and November 10, 2000, the Colonel failed to
take any action after complainant notified him of a �serious breach
of confidentiality� by a coworker who inappropriately obtained some
personal information about complainant from a copy of complainant's
reimbursement claim submitted for payment of his professional liability
insurance premium;
On or about November 8, 2000, the Colonel made erroneous and inflammatory
email statements characterizing the previous contractor interview process
as �unethical and inappropriate.� A coworker distributed this information
to all DECC-St. Louis supervisors at a training session with the intent
to further �discredit� complainant;
On November 21, 2000, the Colonel proposed to remove complainant
from her position and to detail her to an assignment that he said
might last as long as two years and would require substantial travel.
Upon complainant's request for more details about this proposal, the
Colonel never responded to her request for a clarification, which is
part of an attempt to intimidate complainant into vacating her position
in order to fill it with a black female; and
On or about November 24, 2000, complainant requested, but did not receive
a �full and complete� investigation into the issue of access to her
telephone line, which represents a �serious breach of confidentiality.�
In its final decision dated, the agency dismissed complainant's complaint.
Specifically, the agency dismissed claims 1-5 on the grounds that they
were not timely raised with an EEO Counselor. The agency dismissed
claim 1 on the alternative grounds of failure to state a claim.
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 Howard v. Department of the
Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time
limitation generally is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
However, 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 he 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 him control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint on the grounds of untimely EEO Counselor contact.
In her formal complaint, complainant identifies the alleged incidents
of discrimination as having occurred in October and November 2000.
Complainant's initial EEO Counselor contact in February 2001, is
beyond the forty-five day limitation period for making timely EEO
contact. Complainant has failed to present adequate justification
pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss the instant complaint for failure to initiate contact with an
EEO Counselor in a timely fashion was proper and is AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint in its
entirety for the reason stated herein, we find it unnecessary to address
the agency's alternative dismissal grounds.
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
April 15, 2002
__________________
Date