01994008
11-08-1999
Benzena M. Brown, Appellant, v. William S. Cohen, Secretary of Defense, Department of Defense, (Defense Finance and Accounting Service), Agency.
Benzena M. Brown v. Department of Defense
01994008
November 8, 1999
Benzena M. Brown, )
Appellant, )
)
v. ) Appeal Nos. 01994008
) 01996886
William S. Cohen, ) Agency No. DFAS-DE-SANB-99-007
Secretary of Defense, )
Department of Defense, )
(Defense Finance and )
Accounting Service), )
Agency. )
)
DECISION
The appellant timely filed appeals with this Commission from final
decisions, dated March 4, 1999 and August 12, 1999, which the agency
issued pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), (b), and (g).
Both appeals involve the same formal EEO complaint. The Commission
accepts and consolidates the appellant's appeals in accordance with EEOC
Order No. 960, as amended, and 29 C.F.R. �1614.606.
The March 4, 1999 decision dismissed eleven complaint allegations on
the ground that they had been raised in the appellant's prior complaint
(agency complaint number DFAS-DE-SANB-97-044). The August 12, 1999
decision accepted one allegation for investigation and dismissed twelve
additional allegations for untimely EEO counselor contact and for failure
to cooperate.
After a review of the entire record, including the submissions of the
parties on appeal, the Commission finds that the appellant timely sought
EEO counseling regarding only three issues raised in the appellant's
February 4, 1999 complaint: (1) the appellant's receipt on September 20,
1998, of a letter from the Office of Personnel Management (OPM) denying
the appellant's disability retirement application; (2) the appellant's
receipt of the agency's October 8, 1998 directive to return to work or
provide medical documentation; and (3) the alleged on-going failure to
provide a requested reasonable accommodation: reassignment to a less
stressful position.
In addition to the issues identified above, the appellant's complaint
contained numerous allegations regarding a hostile work environment
to which the agency allegedly had subjected the appellant prior to her
taking leave from work beginning January 1998. However, the appellant
did not seek EEO counseling within 45 calendar days of the last day she
allegedly had been subjected to the hostile work environment. On appeal,
the appellant submits copies of medical documentation indicating that
she has had a mental impairment (major depression) for several years.
However, the documentation does not demonstrate that the appellant's
mental condition changed between the time period when she should
have sought EEO counseling regarding her hostile work environment
claim and the date when she sought counseling on November 2, 1998.
Given these circumstances, the Commission finds no basis for tolling
the time period for EEO counselor contact regarding the appellant's
hostile work environment claim. Accordingly, the Commission finds that
the appellant did not timely raise her hostile work environment claim.
For the same reason, the Commission finds no justification for tolling
the time limitation for EEO counseling regarding the appellant's leave
denial claims. Therefore, the Commission affirms the agency's dismissal
of all allegations pertaining to the alleged hostile work environment
and leave denials.
The Commission also finds that the issue identified above as issue 1 fails
to state a claim of employment discrimination. The appellant alleges
that OPM denied her disability retirement application based on false
information submitted to it by the agency. If so, the appellant must
contest the information submitted to OPM in the OPM process. She cannot
obtain a remedy from the EEO process for the agency's alleged wrongdoing
in the OPM process. Similarly, the appellant cannot obtain a remedy
from the EEO process for the agency's alleged wrongdoing with respect
to the appellant's workers' compensation claim or for its responses
to Congressional correspondence. Accordingly, the Commission affirms
the agency's dismissal of allegations pertaining to the appellant's
disability retirement application, her workers' compensation claim(s),
and Congressional correspondence.
The appellant also alleged in her February 4, 1999 complaint that the
agency granted only 8 hours of official time to prepare her September
1997 formal complaint when she had requested 40 hours as a reasonable
accommodation. The appellant further alleges that the agency required
her to "reaccomplish" her September 1997 formal complaint when she had
been diagnosed with major depression. Both of these allegations concern
the processing of the appellant's prior complaint. They do not state
claims of discrimination in employment. Accordingly, the Commission
also affirms the agency's dismissal of these allegations.
The appellant's concerns about the processing of her prior complaint
should have been raised in her appeal from the agency's dismissal of
the prior complaint. In any event, the Commission finds that the award
of eight hours of official time should have been sufficient for the
preparation of the appellant's September 4,1997 formal complaint even
though she had been diagnosed with major depression.
Finally, the Commission finds that the agency erred when it dismissed
a portion of the appellant's complaint for failure to cooperate.
The Commission has held that the regulation is applicable only in cases
where there is a clear record of delay or contumacious conduct by the
complainant. Anderson v. United States Postal Service, EEOC Request
No. 05940850 (February 24, 1995). No such conduct occurred in this case.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of all of the appellant's complaint allegations except for
the following claims: the appellant's receipt of the agency's October
8, 1998 directive to return to work or provide medical documentation;
and the alleged on-going failure to provide a requested reasonable
accommodation, that is, reassignment to a less stressful position.
The Commission REVERSES the agency's implicit dismissal of the latter
claim; and remands the two claims to the agency for further processing.
ORDER
The agency is ORDERED to process the remanded claims in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received the remanded claims 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� (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:
11/08/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations