01A21769_r
05-02-2003
Kathie L. Marsh, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Kathie L. Marsh v. Department of Interior
01A21769
May 2, 2003
.
Kathie L. Marsh,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A21769
Agency No. WBR-02-008
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated January 8, 2002, dismissing her complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In her formal complaint, filed on November 29, 2001, complainant
claimed that she was the victim of unlawful employment discrimination and
harassment on the bases of sex (female) and in reprisal for prior EEO
activity, culminating in her constructive discharge on April 9, 2001.
Specifically, complainant claimed because of the claimed harassment,
on-going since November 1999, she developed mental and physical
ailments which prevented her from returning to work and forced her into
a disability retirement. Complainant claimed that she received an SF-50
on November 14, 2001, terminating her employment effective September 22,
2001, and so contacted an EEO Counselor, eventually filing the instant
complaint.
On January 8, 2002, the agency issued a final decision, dismissing the
complaint on the grounds of untimely EEO Counselor contact. Specifically,
the agency determined that on October 3, 2001, complainant received formal
notice that she was approved for disability retirement, and based on this
date, her EEO Counselor contact on November 19, 2001, 47 days later, was
untimely. In dismissing the complaint, the agency found that complainant
had both actual and constructive notice of the 45-day time limit.
Although the agency dismissed the complaint on the grounds of untimely
EEO Counselor contact, the Commission determines, for the reasons set
forth below, that this case is properly analyzed in terms of whether it
raises the same matter raised in a prior complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The parties do not dispute the date of EEO Counselor contact, or even
the time when complainant first suspected discrimination. Rather, on
appeal, in pertinent part, complainant contends that she filed a prior
complaint on July 27, 2001, (WBR-01-029) also alleging harassment and
constructive discharge on the bases of sex and in reprisal for prior
protected activity, which the agency dismissed for failure to state a
claim because she had not yet been approved for disability retirement.
Complainant also acknowledges that on appeal, the Commission reversed
the agency's dismissal and remanded the constructive discharge claim for
processing. Marsh v. Department of Interior, EEOC Appeal No. 01A20127
(January 29, 2002).
However, in exercising an �abundance of caution,� complainant avers that
she again initiated EEO Counselor contact after receiving the November 14,
2001 FS-50 separating her from service due to her disability retirement.
In responding to complainant's appeal, the agency states that the instant
complaint was properly dismissed for the reasons set forth in its final
decision, but further argues that the same matter was raised and
addressed by the Commission in EEOC Appeal No. 01A20127.
After careful review, we concur with the agency that the Commission's
decision in EEOC Appeal No. 01A20127 addresses complainant's harassment
and constructive discharge claims, as raised in both complaints
(WBR-01-029 and WBR-02-008), to include a specific reference to the
September 2001 notice approving complainant's disability retirement. The
Commission's decision also reversed the agency's dismissal, and remanded
the harassment/constructive discharge claims for further processing.
Therefore, because the Commission's decision in EEOC Appeal No. 01A20127
addresses the same claim as raised in the instant complaint, and remanded
the same claim back to the agency for processing, we find that the instant
complaint is properly dismissed on the grounds that it raises the same
claim as EEOC Appeal No. 01A20127.<1> In reaching this conclusion,
we note that while dismissal for this reason was not discussed in the
agency's final decision, the agency raises it on appeal, and complainant
sets forth pertinent arguments and evidence in her appeal statement.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
dismissal of the captioned complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 2, 2003
__________________
Date
1In light of this determination, we do not
further discuss the agency's dismissal on the alternative grounds of
untimely EEO Counselor contact.