01982648
03-18-1999
Eva Salaiz, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Eva Salaiz v. Department of the Air Force
01982648
March 18, 1999
Eva Salaiz, )
Appellant, )
)
v. ) Appeal No. 01982648
) Agency No. AL900980337
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
The Commission finds that the agency's January 28, 1998 decision
dismissing appellant's complaint on the grounds of untimely EEO counselor
contact, is proper pursuant to 29 C.F.R. �1614.107(b).
A review of the record shows that appellant sought EEO counseling on
October 22, 1997,<1> alleging that she had been discriminated against
on the bases of race (Hispanic), national origin (Mexican American),
sex (female), age (over 40) and reprisal for prior EEO activity when:
(a) from 1989 to September 1992, she worked as a GS-6 Health Benefits
Advisor in the Champus Office without benefit of training, assistance
or a performance plan which resulted in burn-out, stress and a doctor's
assistance; (b) around October 1992, she became Network Development
Coordinator without revisions being made to her position description
reflecting the new duties; (c) during the October 1992 time frame,
two Caucasian females were hired as Health Benefits Advisors and split
the duties that appellant previously performed alone for two years;
(d) from 1993 to 1994, she was transferred to Managed Care and was given
the responsibility for updating the provider listing that was audited by
a Major who made inappropriate and unprofessional comments of a sexual
nature to her. The results of the audit caused appellant to be required
to clear her work through her supervisor; (e) during the 1993 - 1994
time frame appellant grieved a low appraisal and it was upgraded; (f)
appellant was retaliated against after filing a grievance on her 1993
- 1994 appraisal by being denied attendance at conferences, meetings
and training which effectively ruined future opportunities for upward
mobility; (g) on or about September 1995, her duties were changed
to Coordinated Care Specialist until October 1996, but the position
description was not revised until February 1997; and, (h) in October 1996,
her duties were changed to Marketing and Public Relations Coordinator
and she was told that she would be upgraded to a GS-7 and her position
description would be rewritten but it never happened. Appellant filed a
grievance and she was told she would not get promoted. Appellant further
alleged that the discrimination against her had been continuous.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact and because the allegations had been
previously raised in a negotiated grievance. On appeal, appellant
contends that she since she never signed the grievance, no grievance
was ever filed by the union on her behalf.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). Appellant contends
that the discrimination against her has been continuous. A review of her
allegations shows that she claims that the discrimination started in 1989
and lasted until at least February 1997. Nevertheless, a review of her
allegations as well as the nature of the actions in issue, persuades the
Commission that appellant was aware of every alleged discriminatory event
at the time they took place. However, she did not seek EEO counseling
until October 22, 1997. Under these circumstances, appellant should have
sought EEO counseling within 45 days of said occurrences and is unable
to claim, successfully, a continuing violation. The agency's decision
dismissing the complaint on the grounds of untimely EEO counselor is
AFFIRMED. Because of our findings, we need not address the agency's
alternative grounds for dismissal.
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. �l6l4.604(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 consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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 18, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The record shows that appellant sought EEO counseling on August 25,
1997, concerning her annual performance appraisal for the rating period
July 1, 1996, to March 31, 1997. On October 20, 1997, appellant reached
a settlement agreement with the agency which provided that her position
description would be updated and changed to reflect her current duties
and that her rating would be changed to excellent. Two days later,
appellant sought EEO counseling regarding the instant complaint.