01982804
08-26-1999
Hazel E. Laurant, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Hazel E. Laurant v. Department of the Navy
01982804
August 26, 1999
Hazel E. Laurant, )
Appellant, )
)
v. ) Appeal No. 01982804
) Agency No. 98-00251-032
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated February 12, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The agency dismissed the appellant's January 14, 1998 complaint for
failure to raise four identified allegations with the EEO counselor.
The appellant contends on appeal that she filed her EEO complaint when
the agency did not complete EEO counseling within 30 calendar days as
required by EEOC Regulation 29 C.F.R. �1614.105(d).
The record demonstrates that the appellant filed an informal complaint
which the agency received on December 11, 1997. Therein, the appellant
alleged that because of her sex and mental disability and in reprisal
for her prior EEO activity, the agency continued to subject her to a
hostile work environment and required her to work outside of her medical
restrictions. There is no evidence which demonstrates that the agency
provided the appellant with EEO counseling within 30 calendar days
as required by 29 C.F.R. �1614.105(d) or that the counseling period
was extended for an additional 60 days or less in accordance with 29
C.F.R. �1614.105(e). Given these circumstances, the Commission finds
that the agency erred when it dismissed the appellant's complaint on
the ground that the appellant failed to raise her allegations with the
EEO counselor.
In so finding, the Commission recognizes that the agency assured the
appellant that it would again consider her allegations after counseling
was completed. However, the agency does not have the authority to extend
the thirty-day counseling period without the appellant's consent pursuant
to 29 C.F.R. �1614.105(e).
The agency identified four allegations of discrimination and reprisal
raised by the appellant's complaint. However, it is clear from the
appellant's informal complaint and from her formal complaint, including
the corrective actions she sought, that the appellant is alleging that
the agency was subjecting her to a hostile work environment. Therefore,
the agency should treat the identified instances of harassment and other
adverse treatment as examples of the hostile work environment to which
the appellant allegedly was being subjected. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). On remand,
the agency should consolidate this complaint with other hostile work
environment complaints filed by the appellant, if consolidation would not
unreasonably delay the investigation or hearing of the complaints. Id.
It also appears that in alleging that the agency required her to work
outside of her medical restrictions, the appellant may be raising a
denial of reasonable accommodation claim. On remand, the investigator
should clarify the appellant's intent in this regard.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
dismissal of the appellant's January 14, 1998 complaint and REMANDS the
complaint for processing as ORDERED 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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
August 26, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations