01981886_r
03-30-1999
Daphne Burke, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Daphne Burke, )
Appellant, )
)
v. ) Appeal No. 01981886
) Agency No. BKHBFO9709H0170
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On January 5, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her attorney of record on
December 22, 1997, 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., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. In her
complaint, appellant alleged that she was subjected to discrimination
on the bases of race (Negroid), color (Black), national origin
(African-American), physical disability (back), mental disability
(stress), and in reprisal for prior EEO activity when:
The Chief of the Environmental Division (CED) failed to acknowledge
appellant's written request on September 4, 1997, to upgrade her current
position as a Secretary (OA), GS-0318-5 to a Secretary (OA) GS-0318-6
(noncompetitively);
In 1990, the Chief of the Planning Division (CPD) did not offer appellant
the opportunity to advance when he did not promote or recruit the
Division Secretary from within the Agency, and instead filled the
position with a Caucasian individual from the Priority Placement
Program's (PPP) stopper list;
In November 1991, the CPD did not offer appellant the opportunity to
advance to a position filled by another Caucasian individual;
In September 1992, another supervisor (S1) did not offer appellant the
opportunity to advance into the Division Chief's Secretary position
and instead gave this opportunity to a Caucasian individual who held
the position as a temporary for one year;
In November 1996, appellant was overlooked for a vacant GS-0318-05
Division Secretary position which was noncompetitively filled by a
Caucasian individual;
In February 1997, appellant was overlooked for a vacant Environmental
Division secretary position, and the position was placed at the
GS-0318-07 level in an attempt not to promote appellant;
In August 1997, appellant was not selected for a vacant GS-0318-07
Division Secretary position, and instead a Caucasian lab surplus team
member was placed into the position;
On or about October 6, 1997, appellant discovered that her supervisor
was taking notes and preparing charts concerning appellant's attendance
since November 3, 1993, in an attempt to build a case to terminate
appellant when the opportunity arises.
The agency accepted allegations (1) and (7) for investigation and
dismissed allegations (2) through (6) pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner, and allegation (8), pursuant to 29
C.F.R. �1614.107(e), for alleging that a proposal to take a personnel
action, or other preliminary step to taking a personnel action is
discriminatory. With regard to allegations (2) through (6), the agency
determined that appellant's September 15, 1997 initial EEO Counselor
contact occurred more than forty-five (45) days from the dates on which
these incidents occurred, and was, therefore, untimely.
On appeal, appellant contends that she was unaware of the applicable
time limits as the agency failed to post the necessary EEO information
at her work location. In support of this contention appellant provided
the affidavits of two co-workers attesting to the absence of EEO posters
at appellant's work location.
In response, the agency asserts that appellant had actual and constructive
notice of the applicable time limits. The agency argues that appellant
initially sought counseling concerning allegation (6) on January 6, 1997,
but on January 8, 1997, she elected to sign a memorandum indicating her
desire not to pursue the complaint. The agency asserts that in that
memorandum, a copy of which was provided for the record, the forty-five
(45) day limitation period was specifically identified. The agency
also argues that appellant had actual notice of the limitation period
as a result of sexual harassment training she received on May 21, 1997.
The agency provided the affidavit of the EEO Manager at appellant's
work location attesting to the disclosure during that training of the
forty-five (45) day limitation period for initial EEO Counselor contact.
Additionally, the agency provided an document signed by appellant
acknowledging that she received the sexual harassment training. Finally,
the agency included affidavits from the EEO Manager and appellant's
supervisor, each attesting to the presence of EEO posters containing
the relevant information at appellant's work location throughout the
relevant time period.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges that
a proposal to take a personnel action, or other preliminary step to
taking a personnel action, is discriminatory. In the instant case, we
find that allegation (8) concerns speculative future harm. See Stroud
v. Department of the Treasury, EEOC Appeal No. 01952101 (October 26,
1995); Spencer v. Department of the Navy, EEOC Appeal No. 01942408 (June
1, 1994). Appellant is predicting the potential for a future harm, i.e.,
that her supervisor will use the notes she took concerning appellant's
attendance to build a case for her termination. There is no present
injury to appellant, however. Accordingly, we find that allegation (8)
was properly dismissed pursuant to 29 C.F.R. �1614.107(e).
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 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.
In the present case, appellant's assertion that she was unaware of the
forty-five (45) day limitation period for initiating EEO Counselor contact
is rebutted by the evidence in the record. The record discloses that
on May 21, 1997, appellant received sexual harassment training during
which the limitation period was addressed. Additionally, the record
contains a memorandum signed by appellant on January 21, 1997, in which
the forty-five (45) day limitation period is clearly addressed. Based on
this evidence, as well as the affidavits provided by the agency's EEO
Manager and appellant's supervisor concerning the presence of EEO posters
at appellant's work location, we find that appellant was aware, or should
have been aware of the time limit for initiating EEO Counselor contact.
As appellant offered no additional justification for an extension of the
time period, we find that the agency properly dismissed allegations (2)
through (6) for untimely EEO Counselor contact.
Accordingly, the agency's decision to dismiss allegations (2), (3), (4),
(5), (6), and (8) is AFFIRMED for the reasons set forth herein.
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:
March 30, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations