05980343
04-29-1999
Sandra L. Short, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Sandra L. Short v. Department of the Air Force
05980343
April 29, 1999
Sandra L. Short, )
Appellant, )
) Request No. 05980343
v. ) Appeal No. 01972741
) Agency No. 5Z1S96003
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
GRANTING OF REQUEST TO RECONSIDER
On January 28, 1998, the appellant timely initiated a request to the
Equal Employment Opportunity Commission (Commission) to reconsider
the decision in Short v. Department of the Air Force, EEOC Appeal
No. 01972741 (December 18, 1997). The decision was received by the
appellant on December 29, 1997. EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence that tends to establish one or more
of the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). The appellant's request is granted, in part.
ISSUES PRESENTED
Whether the previous decision properly affirmed the final agency decision
(FAD) which dismissed the appellant's complaint on the grounds that she
failed to timely initiate contact with an EEO counselor, and whether
the FAD also properly dismissed the complaint for failure to cooperate
and latches.
BACKGROUND
The appellant filed an EEO complaint alleging discrimination on the
bases of disability (chronic fatigue syndrome), sex (female) and age
(born 8/30/69) when:
(1) on February 7, 1996, the agency denied her request to receive donated
leave through the Voluntary Leave Transfer Program,
(2) on February 5, 1996, the appellant's leave-without-pay (LWOP) status
ended, and she temporarily lost her health insurance benefits,
(3) during the week of January 22, 1996, one of the appellant's coworkers
was subjected to retaliation when he offered to voluntarily transfer
annual leave to the appellant,
(4) in December 1995, the appellant received a letter of proposed
separation for disability,
(5) in November 1995, the Civilian Personnel Office (CPO) tried to coerce
the appellant into resigning, and
(6) from December 1994 through February 1996, the CPO and management
failed to provide the appellant with full disclosure of both her own
and management's options regarding her employment.
With regard to allegation (2), the appellant alleged that her health
insurance was cut-off from February 5, 1996 through February 14, 1996.
The previous decision noted that the appellant's complaint contained a
seventh allegation:
(7) that she was subjected to discrimination when she was constructively
discharged, i.e., forced into disability retirement.
The application for disability retirement was approved on March 11, 1996.
The FAD set forth the allegation of constructive discharge, but failed
to address whether it should be accepted.
The FAD dismissed the complaint for failure to timely initiate contact
with an EEO counselor, failure to cooperate, and latches. It also
dismissed allegation (3) for failure to state a claim, and allegation (4)
on the grounds that it alleged a proposal to take a personnel action.
With regard to the first dismissal grounds, the FAD found that the
appellant did not contact an EEO counselor with the intent to pursue
an EEO claim until June 20, 1996, beyond the 45 day time limit. As the
previous decision affirmed on this grounds, and found this also applied
to allegation (7), it did not address the other grounds for dismissal
set forth in the FAD.
The appellant initiated contact with an EEO counselor in late January,
in the form of three telephone conversations between this time to
mid-February 1996. The counselor stated that the only complaint
allegation which the appellant raised at this time was allegation (2),
and that while disability retirement was discussed, it was in terms of
how the appellant could achieve this goal. On appeal, the appellant
stated that she first contacted the EEO counselor one day after she
received the Office of Personnel Management's (OPM) initial "callous"
denial of her disability retirement application on January 22, 1996.
The appellant also averred on appeal that she raised allegations (1)
through (4) with the EEO counselor in February 1996. The counselor
denied this.
The counselor stated that in February 1996 she asked the appellant if
she wished to file an informal complaint, repeatedly telling her that
she needed to contact the counselor within 45 days of the incidents to
be timely, and the appellant said that she did not wish to file.
When the appellant filed her informal complaint on June 20, 1996, she
wrote that illness and awaiting a Freedom of Information Act (FOIA)
reply caused her delay. The counselor stated that she reminded the
appellant that telephoning would have been sufficient, and there was no
cogent reply. On appeal and request for reconsideration, the appellant
averred that the counselor stated that she had to file a written informal
complaint to be timely, and she was unable to do so because of her
chronic fatigue, immunodeficiency syndrome and related illnesses.
With regard to dismissing the complaint for failure to cooperate,
the record reflects that by letter dated October 31, 1996, the EEO
counselor asked the appellant to provide medical documentation which would
specifically explain why she was unable to comply with the "45 calendar
day time limit to file an informal discrimination complaint." The letter
asked the appellant to provide this information within 15 calendar days of
her receipt of the letter, and warned that failure to do so may result in
dismissal of her formal complaint. The FAD dismissed the complaint for
failure to cooperate on the grounds that the appellant did not respond
to this letter.
On appeal, the appellant averred that she did not receive the letter of
October 31, 1996. A postal domestic return receipt shows it was received
at the address the appellant provided the EEO counselor on November 4,
1996, but was not signed by the appellant. The appellant explains that
she moved on October 28, 1996. She submitted an affidavit from a witness
who corroborated the move. The appellant averred that in early November
1996 she left a message on the EEO counselor's telephone answering
machine giving her current address. This was not denied by the agency.
Regarding latches, the FAD found that the appellant failed to file her
complaint in a timely matter or respond to requests for clarification
as to why she failed to do so. While the FAD mentioned the complaint
being untimely filed, the record reflects it was referring to untimely
EEO counseling.
On request, the appellant provides letters from two physicians
indicating that the medical conditions they described in October 1995,
which are in the appeal record, continued into June 1996. One October
letter stated that the appellant could barely care for herself and was
essentially homebound. The physicians now write that a four month delay
in completing a 2,600 word informal complaint is consistent with the
appellant's medical condition.
ANALYSIS AND FINDINGS
In order to prompt the Commission to reconsider the previous decision,
the appellant must present evidence or argument that satisfies one of
the criteria of 29 C.F.R. �1614.407. After considering the appellant's
request, we find that she has satisfied the criteria for reconsideration,
in part.
As an initial matter, the appellant's allegation of age discrimination
is not within the purview of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. since she is under
40 years of age. Accordingly, her claim of age discrimination fails.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
In dismissing the appellant's complaint on the grounds that the appellant
failed to timely initiate contact with an EEO counselor, the agency and
the previous decision reasoned that the appellant did not demonstrate an
intent to bring her claim until she filed the informal complaint, which
was on June 20, 1996. It is uncontested, however, that the appellant
initiated contact with an EEO counselor in telephone conversations in
late January 1996 through mid-February 1996, and there is no provision
in 29 C.F.R. Part 1614 that such contact must be consummated with an
informal complaint to satisfy the 45 day time limit for initial EEO
counselor contact.
As the appellant raised allegation (2) at that time, we find it is timely.
Further, since allegation (1) is like or related to allegation (2),
we find it to be timely. 29 C.F.R. �1614.107(b).
It is like or related to allegation (2) because the appellant wished to
receive transferred leave for the same reason she sought continued LWOP,
as a way to extend her employment health insurance.
The counselor's statement that only complaint allegation (2) was raised
during the above initial contact dates is credible. For example, the
appellant conceded on appeal that at the time, she was disappointed
with OPM's initial denial of her disability retirement application.
This is more consistent with the counselor's description of the context
that disabilty retirement was raised, as opposed to allegation (7).
The appellant did not contact an EEO counselor again until she filed
her informal complaint on June 20, 1996, beyond the 45 day time limit
with respect to allegations (3) through (7). The appellant explained
that her delay was because she was awaiting a FOIA reply and illness.
Awaiting a FOIA reply does not justify the delay. Further, there was no
need for an informal complaint to be 2,600 words to raise seven issues,
and the counselor's statement that an oral informal complaint would be
acceptable is credible. Finally, the appellant filed a lengthy appeal
with extensive documentation, and could have provided her clarifying
medical information at that time. Accordingly, the previous decision's
affirmation of the FAD's dismissal of allegations (3) through (7) on
the grounds that they were untimely raised with an EEO counselor is
affirmed.
We find that the agency improperly dismissed the appellant's complaint
for failure to cooperate. The appellant did not receive the warning
letter, and the agency does not controvert her claim that she notified
it of her new address about a week after the warning letter was sent.
Further, there was sufficient information in the record for the agency
to continue to adjudicate her claim without the requested information.
Accordingly, the agency improperly dismissed the appellant's complaint
for failure to cooperate. 29 C.F.R. �1614.107(g).
Finally, we find that the agency improperly dismissed the appellant's
complaint for latches. Not enough time elapsed with regard to inaction
on the appellant's part for this doctrine to apply, and she timely
raised allegations (1) and (2). As such, the agency should process
allegations (1) and (2), on the bases of disability and sex, but not
age discrimination.
CONCLUSION
After a review of the appellant's request to reconsider, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that the appellant's request meets the criteria of
29 C.F.R. �1614.407(c), in part. It is therefore the decision of the
Commission to grant the appellant's request, in part. The decision of
the Commission in EEOC Appeal No. 01972741 is modified.<1>
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.
RIGHT TO FILE A CIVIL ACTION (Q0993)
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 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:
April 29, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 The appellant avers that an EEO counselor engaged in various improper
activities, but this is not established by the record.