01982961_r
04-02-1999
Rosette L. Altobelli, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Rosette L. Altobelli, )
Appellant, )
)
v. ) Appeal No. 01982961
) Agency No. AUFSFO9804I0090
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On February 26, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 9, 1998, pertaining
to her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. In her complaint, appellant alleged that she was subjected to
discrimination on the basis of sex (female) when:
Appellant was sexually harassed by her supervisors from June 1993 through
July 1994:
Appellant's supervisors repeatedly voiced their disdain for women being
in the workforce;
Appellant's supervisor made sexual advances toward appellant and pinched
her buttocks;
Appellant's supervisor explicitly described his sexual practices to
appellant; and
Appellant's supervisors made disparaging remarks about appellant's
appearance during her pregnancy, refused her medical and sick leave
during the pregnancy, and refused to allow her to leave the office when
she went into labor.
The agency dismissed all of the allegations pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for failure to timely contact an EEO Counselor.
The record indicates that appellant initially contacted an EEO Counselor
on November 5, 1997.
On appeal, appellant claims that she hand delivered several letters to
the president of her local union, requesting that the union file a formal
complaint of sexual harassment on her behalf. Appellant claims that she
wrote follow-up letters and made phone calls to determine the status
of her case, but all of her efforts were ignored. Appellant appended
copies of letters, sent to the union president, requesting that the
union file a formal complaint of sexual harassment on her behalf, dated
November 7, 1993, November 27, 1993, December 3, 1993, January 28, 1994,
February 7, 1994, May 6, 1994, and October 28, 1994. Appellant states
that she never received an answer to any of these letters. Additionally,
appellant attached a letter dated June 22, 1995, to the Inspector General
Sexual Harassment Hotline asking for �remedial action,� a February 15,
1997 letter to the Hotline requesting �assistance in the investigation
of sexual harassment,� and an October 15, 1997 letter to agency EEO,
asking to file a formal complaint of sexual harassment.
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 can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
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.
A complainant commences the EEO process by contacting an EEO Counselor
and �exhibiting an intent to begin the complaint process.� See Gates
v. Department of Air Force, EEOC Request No. 05910798 (November 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is �logically connected with the EEO process� is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(September 7, 1990); see Kemer v. General Services Administration,
EEOC Request No. 05910779 (December 30, 1991).
Appellant did not contact an EEO Counselor until November 5, 1997.
While appellant clearly intended to file a complaint through her numerous
letters to the Union, the Commission finds that a union president is not
an official who is logically connected with the EEO process. Further,
appellant's correspondence to officials who are logically connected with
the EEO process, namely the Sexual Harassment Hotline workers and agency
EEO officers, occurred more than 45 days after appellant's allegations
occurring in June 1993 through July 1994. Accordingly, the agency's
decision to dismiss appellant's complaint for untimely counselor contact
is AFFIRMED.
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:
April 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations