01A40961_r
03-12-2004
Sonja A. Hailer, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Sonja A. Hailer v. Department of the Air Force
01A40961
March 12, 2004
.
Sonja A. Hailer,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A40961
Agency No. 8B1M02003
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 24, 2003, 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.
On August 1, 2001, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
In a formal complaint filed on March 1, 2002, complainant alleged that
she was subjected to discrimination on the bases of national origin ,
sex, and in reprisal for prior EEO activity when:
(a) on April 2, 2000, she was forced to resign from her position,
Supervisor Sales Store Checker, GS-2091-05, because of the repeated
harassment she received from her first and second level supervisors;
(b) on September 12, 2000, she learned that the agency denied her request
for an additional 6-month extension to her Leave Without Pay (LWOP); and
(c) on July 15, 2001, she learned she was not selected for a GS-04
position.
The agency dismissed claims (a) and (b) for untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically,
the agency determined that complainant's August 1, 2001 contact was
beyond the forty-five day time limit, with respect to the April 2,
2000 and September 12, 2000 incidents. The agency dismissed claim (c)
for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
Specifically, the agency found that because complainant did not apply
for a GS-4 position, she was not aggrieved.
Claim (c)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission finds that claim (c) fails to state a claim because
complainant failed to show that she suffered harm or loss with respect to
a term, condition or privilege of employment for which there is a remedy.
The record supports a finding that complainant did not apply for the
position at issue in claim (c). A complainant is only aggrieved in
such claims where a complainant alleges that the agency discouraged
her from applying; or that the application process was secretive.
See Ozinga v. Department of Veterans Affairs, EEOC Request No. 05910416
(May 31, 1991). Complainant does not claim that she was discriminatorily
discouraged from applying for the subject position, or that she was
discriminatorily kept unaware of the position.
Claims (a) and (b)
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
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
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.
Complainant claimed that on April 2, 2000, she was forced to resign from
her position because of the repeated harassment from her first and second
level supervisors (claim (a)); and on September 12, 2000, she learned that
her request for an additional 6-month extension to her LWOP was denied
(claim (b)). However, complainant did not initiate EEO Counselor contact
regarding these claims until August 1, 2001, well beyond the 45-day time
limit. The Commission notes that complainant provided no evidence that
she was not aware of the 45-day limitation period. Because complainant
has not presented sufficient justification for extending or tolling the
time limitation, we find that the agency properly dismissed claims (a)
and (b) for untimely EEO Counselor contact.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
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
March 12, 2004
__________________
Date