Rosette L. Altobelli, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01982961_r (E.E.O.C. Apr. 2, 1999)

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