0120082017
03-13-2009
Judith A. Johnson, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Judith A. Johnson,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120082017
Agency No. FS200600062
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 19, 2008, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of sex (female), disability (knee injury),
age (47 years old at the time of the first incident and 64 years and older
at the time of the remaining incidents), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. in 1987 complainant was not offered a suitable job after an
on-the-job-injury and vocational rehabilitation;
2. on or about April 5, 2004, a job offer was sent to complainant pursuant
to a suitability determination from the Department of Labor's (DOL) Office
of Worker's Compensation Programs (OWCP), which was withdrawn on or about
June 1, 2004, when the OWCP determined that the offer was not suitable;
3. on or about January 24, 2005, a modified job offer was sent to
complainant, which was placed on hold due to a question by the OWCP as
to its suitability;
4. on May 22, 2005, the job offer was again sent to complainant which
she declined on June 22, 2005, due to questions she had regarding
suitability;
5. by letter dated August 24, 2005, complainant was advised that she had
fifteen (15) days to accept the job offer or her OWCP benefits would be
terminated;
6. by letter dated September 9, 2005, complainant accepted a job offer
and again questioned whether she was suitable for the position due to
her age and physical condition;
7. on September 19, 2005, complainant reported for work, had a fall,
and had to be removed by ambulance;
8. on September 22, 2005, the OWCP terminated complainant's OWCP benefits
effective September 16, 2005;
9. on October 26, 2005, the OWCP rescinded the September 22, 2005
termination of OWCP benefits, and the job suitability decision, and
reinstated the benefits effective September 19, 2005;
10. on December 2, 2005, the agency terminated complainant's employment.
The agency dismissed the claims for untimely EEO counselor contact
and further found that the claims were a collateral attack on the OWCP
process. Specifically, the agency noted that complainant did not contact
an EEO counselor until December 23, 2005, which the agency found to be
beyond the regulatory limit. Furthermore, the agency found, it was the
OWCP and not the agency who determined whether or not complainant would
be returned to employment and therefore the proper forum for her to raise
her allegations was in the OWCP process, not the EEO process. On appeal,
complainant argues that the agency has mischaracterized her complaint.
Following a review of the record we find that the agency correctly
dismissed claims 1 through 9, inclusive. The alleged discriminatory
events occurred in 1987 and from April 2004 to October 26, 2005, but
complainant did not initiate contact with an EEO Counselor until December
23, 2005, which is beyond the forty-five (45) day limitation period.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. However, as regards claim 10 we find that complainant's EEO
counselor contact was timely.
The agency further found that complainant's allegations constituted a
collateral attack against the OWCP process. We find, however, that
claim 10 does not constitute a collateral attack against the OWCP
process because the removal action was conducted by the agency, not
the OWCP. While the agency asserts in its dismissal decision that the
termination decision was made because OWCP rescinded its suitability
determination, this addresses the merits of complainant's allegations
without a proper investigation as required by the regulations and
is irrelevant to the procedural issue of whether she has stated a
justiciable claim. See Osborne v. Department of the Treasury, EEOC Request
No. 05960111 (July 19, 1996); Lee v. United States Postal Service,
EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United
States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
We therefore find that the agency's dismissal of claim 10 was improper.
As regards complainant's arguments on appeal, complainant states that
the issues should have been characterized as follows:
1. Complainant suffered long term mental pain and suffering as a victim of
prejudice and personal reprisals by staff and contractors of the Plumas
National Forest Human Resources Department (PNF-HR). From 2003 thru
[sic] 2005, the PNF-HR attacked the personal character of the Complainant
through spreading lies and slander within their own department, to
other departments and agencies of the United States Federal Government,
and to others outside the U.S. Government, including the staff of the
Complainant's private physician;
2. Complainant experienced further mental pain and suffering when the
HRPNF discriminated based on age and gender through its vicious and
aggressive efforts during 2003-2005 to re-hire the Complainant, after
ignoring every effort by the Complainant and OWCP for her re-employment
between 1980 and 2002;
3. The Complainant suffered immediate and long term physical injuries, or
re-injuries, from fainting and falling on September 19, 2005, the first
day of re-employment by the PNF, due to stress caused by the atmosphere
of lies and slander created by the HR-PNF, in combination with the
failure of the HR-PNF to address reasonable and lawful requests of the
Complainant to evaluate her complete medical condition and vocational
abilities prior to re-employment
We note however that even assuming arguendo that the claims are
characterized as complainant describes, complainant's EEO counselor
contact was untimely since all the events occurred more than 45 days
before her counselor contact on December 23, 2005. Furthermore, much
of complainant's claims seem to allege that agency officials defamed her
and EEO regulations do not provide a cause of action for defamation.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed in part and reversed in part and claim 10 is
remanded to the agency for processing in accordance with the Order set
forth below.
ORDER (E0408)
The agency is ordered to process the remanded claim (claim 10) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0408)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 13, 2009
__________________
Date
2
0120082017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120082017