01982916_r
03-19-1999
Diane L. Shepherd, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Diane L. Shepherd, )
Appellant, )
)
v. ) Appeal No. 01982916
) Agency No. DON98-60201-002
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning 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 �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The final agency decision
was dated February 18, 1998. The appeal was postmarked March 2, 1998.
Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The record indicates that on October 22, 1997, appellant initiated
contact with an EEO Counselor regarding her complaint. Informal efforts to
resolve her concerns were unsuccessful. On December 22, 1997, appellant
filed a formal complaint, alleging that she was the victim of unlawful
employment discrimination on the bases of her mental disability (anxiety)
and in reprisal for filing a workers' compensation claim when:
Command purposely delayed approval on appropriate workplace accommodations
for 26 days after appellant's second written request and 29 days after
her initial written request;
Senior managers allegedly told subordinate personnel that appellant
would not be returning to work as the TQL Coordinator after the command
received a copy of her doctor's report;
On July 14, 1997, the Executive Director yelled at the her even though
the command had received the doctor's report with the diagnosis of
anxiety disorder;
On July 15, 1997, the Executive Director and others moved personal and
professional materials from her work site;
On July 14, 1997, medical recommendations to ease her return to work
were ignored by the command;
Appellant was not allowed to return to her position as TQL Coordinator
until August 16, 1997;
On October 28, 1997, appellant was instructed to request flexiplace as
a workplace accommodation even though she was not agoraphobic at the
time; and
On September 30, 1997, appellant discovered that subordinate staff members
were directed to prepare written statements any time they interacted
with appellant after her return to work on July 14, 1997.
On February 18, 1998, the agency accepted allegation (A), and dismissed
the basis of reprisal, and allegations (B) through (H) for failure to
state a claim and failure to contact an EEO counselor in a timely manner.
Specifically, the agency found that: 1) appellant's basis of reprisal
for her workers' compensation claim was not covered under Title VII;
2) appellant failed to contact an EEO counselor within 45 days of the
perceived discrimination for allegations (B) through (F), and (H); and 3)
appellant failed to state a claim in allegations (B), (G), and (H).
On appeal, appellant asserts that she failed to comply with the statutory
requirements because her Supervisor was on leave from July 14, 1997 to
July 31, 1997 and August 1, 1997 to August 8, 1997. Appellant contends
that due to her Supervisor's absence she was unable to informally resolve
her issues. Second, appellant contends that she failed to address these
allegations in a timely manner because of her disability (high anxiety).
On appeal, the agency contends that appellant was aware of the time limits
for initiating EEO contact. The agency submits copies of postings and
bulletins, which contain the 45-day time limit for initiating EEO contact,
as well as an affidavit from the previous Deputy Equal Opportunity
Officer stating that at the time of the incidents at issue notice of
the applicable time limits for initiating EEO contact was provided to
all employees.
EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least forty years of age),
the Rehabilitation Act (discrimination on the basis of disability),
or the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or
the Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating
in any stage of administrative or judicial proceedings under these
statutes. Here, appellant claims discrimination in reprisal for filing a
workers' compensation claim. This claim of reprisal is not within the
purview of the EEO statutes. Therefore, the Commission finds that the
agency's dismissal of appellant's basis of reprisal was proper.
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 limitations period
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The incidents raised in allegations (B)-(F) occurred prior to and at
the time of appellant's return to work in July 1997, appellant did not
contact an EEO Counselor until October 22, 1997. Clearly, beyond the
45-day time limit.
Appellant contends that she was unable to comply with the applicable time
limits for initiating EEO contact with regard to allegations (B)-(F),
and (H) because her Supervisor was on leave, delaying her attempts
to informally resolve her issues. We find that this explanation is
insufficient to warrant an extension of the applicable time limit.
The Commission has held that the use of the grievance process or other
internal appeal process does not toll the time limit for contacting an
EEO Counselor. See Speed v. USPS, EEOC Request No. 05921093 (June 24,
1993). Appellant's attempts to informally resolve her issues outside the
EEO process do not justify an extension of the time limit for initiating
the EEO process.
Further, appellant contends that she was delayed in initiating EEO
contact due to her high anxiety. The Commission has held that a
complainant's failure to meet the filing deadline will be excused only
if the complainant establishes that she was so physically or emotionally
incapacitated that they were unable to make a timely filing. See Zelmer
v. USPS, EEOC Request No. 05890164 (March 9, 1989) and Hedgepath v. USPS,
EEOC Request No. 05940478 (January 6, 1995). We find, however, that
the evidence presented in the present case is insufficient to establish
that appellant was so incapacitated as to be unable to make timely EEO
contact. Accordingly, the agency's dismissal of allegations (B)-(F)
is hereby AFFIRMED.
With regard to allegation (H), we find that the agency's dismissal
on the grounds that appellant failed to contact an EEO Counselor in a
timely manner was improper. In allegation (H), appellant alleged that on
September 30, 1997, she discovered that staff members were directed to
prepare written statements any time they interacted with her after her
return to work on July 14, 1997. Appellant stated that she was unaware
of this direction until September 30, 1997, making her EEO contact on
October 22, 1997, timely.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
In allegation (G), appellant alleged that she was instructed to request
flexiplace as a workplace accommodation. Appellant stated that she
requested to return to her previously approved flexiplace arrangement when
she returned to work and her Supervisor told her that he would approve
her request only if she requested it as an accommodation. According to
appellant, she did not need flexiplace as an accommodation, but rather
merely requested that schedule in order to do her work more effectively.
The agency contends that the appellant is not aggrieved under the law
when she requested flexiplace as a reasonable accommodation of her
disability and had her request granted. We find that appellant is
not aggrieved since she had her request to work flexiplace granted.
While the reason for her request may have been in error, appellant
failed to demonstrate that this error caused her to suffer any harm
to the terms, conditions, or privileges of her employment. Therefore,
the agency properly dismissed allegation (G) for failure to state a claim.
Finally, in allegation (H), appellant alleged that subordinate staff
members were directed to prepare written statements any time they
interacted with her after her return to work. We find that this unusual
direction did impact a term or condition of appellant's employment,
clearly affecting her interactions with her subordinates. We, therefore,
find that the agency improperly dismissed allegation (H) for failure to
state a claim.
CONCLUSION
Accordingly, the agency's decision to dismiss the basis of reprisal and
allegations (B)-(G) was proper and is AFFIRMED for the reasons set forth
herein. The agency's decision to dismiss allegation (H) was improper,
and is hereby REVERSED. Allegation (H) is REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 19, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations