01A00374
07-11-2002
Ku H. Carpenter, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Ku H. Carpenter v. Department of Defense
01A00374
July 11, 2002
.
Ku H. Carpenter,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A00374
Agency No. 99-DCW-12G-042
DECISION
INTRODUCTION
Complainant initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of national origin (Korean), sex (female), age (55), and disability
(bilateral knee pain), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to meet applicable time limits, for raising a
matter in a negotiated grievance procedure, and for raising an issue
over which the agency has no jurisdiction.
BACKGROUND
Complainant is employed as a cashier at the agency's McChord Air Force
Base. Complainant filed a formal complaint on May 19, 1999, alleging
discrimination when:
on November 8, 1998, her hours were not increased to thirty-two (32)
hours per week on the bases of national origin (Korean), sex (female),
age (55), and disability (bilateral knee pain);
from June 1995 to the present, her supervisors failed to edit her job
description to accommodate her work restrictions due to her disability;
on October 26, 1996, complainant's supervisor sent her home after her
doctor placed her on further work restrictions;
in November 1996, complainant's Workers' Compensation forms were not
forwarded to the Office of Workers' Compensation Programs (OWCP);
in August 1997, May 1998, August 1998, and September 1998, complainant's
disability retirement was denied; and
on February 5, 1997, complainant was told that she would be eliminated
if she did not obey the rules and her supervisor stared at her while
she would shop in the store which complainant alleges was based on her
national origin (Korean).
On June 2, 1999, the agency issued its FAD dismissing claims (2), (3)
and (6) for failure to raise a matter in a timely manner. The agency
further dismissed claim (1) for raising a claim already alleged in a
negotiated grievance procedure. Finally, the FAD dismissed claims (4)
and (5) for raising matters outside of the jurisdiction of the agency.
On July 7, 1999, complainant filed an appeal to the Merit Systems
Protection Board (MSPB). The Board issued an initial decision on August
13, 1999, dismissing the allegations because the Board lacks jurisdiction.
Upon receiving the MSPB's decision, complainant filed an appeal of
the FAD and a petition for review of the MSPB's initial decision.
The Commission has denied complainant's petition for review.
ANALYSIS AND FINDINGS
Initially, the Commission notes that we find complainant timely appealed
the FAD. The Civil Service Reform Act, 5 U.S.C. � 7702(f), provides that
in any case in which an employee files an appeal in a timely fashion but
with an agency other than the agency with which the appeal is supposed
to be filed, the employee shall be treated as having timely filed the
appeal as of the date it is filed with the proper agency. The record
indicates that complainant received the FAD on June 5, 1999, and the
MSPB appeal was received on July 7, 1999. Accordingly, we find that
complainant timely filed an appeal with MSPB and therefore, this appeal
to the Commission will be considered timely.
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in 29 C.F.R. � 1614.105,
29 C.F.R. � 1614.106, and � 1614.204(c), unless the agency extends the
time limits in accordance with � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond her control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The EEO counselor's report indicates that complainant contacted an EEO
counselor on March 8, 1999, regarding her claims. Of claims (2), (3),
and (6), the latest incident occurred on October 26, 1996. On appeal,
complainant alleges through her representative that she was not aware
of the timelimits and that the agency neglected to promote and maintain
an EEO program. Further, she argues that once she attempted to make
contact with the EEO Office, she was denied.
Where, as here, there is an issue of timeliness, "[a]n agency always
bears the burden of obtaining sufficient information to support a
reasoned determination as to timeliness." Guy, v. Department of Energy,
EEOC Request No. 05930703 (January 4, 1994). In addition, in Ericson
v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993),
the Commission stated that the agency has the burden of providing evidence
and/or proof to support its final decisions. See Gens v. Department
of Defense, EEOC Request No. 05910837 (January 31, 1992). Further,
the Commission imputes constructive knowledge of EEO procedures to an
employee when an agency complies with notice posting requirements. The
agency was required to produce evidence that it took sufficient actions
to justify the inference of constructive knowledge. The Commission has
held that blanket conclusions, without supporting affidavits or other
evidence, were insufficient to demonstrate the agency had complied with
posting requirements and it declined to impute knowledge of the EEO
complaint process to the employee. Thompson v. Department of the Army,
EEOC Request No. 05910474 (September 12, 1991).
Upon review of the record, the agency includes postings dated December 2,
1997, however, the alleged incidents occurred prior to the date on the
notices. In addition, the agency failed to include any other evidence,
such as affidavits, which would prove that there were EEO postings in
prominent locations at the time of alleged incidents. The Commission
finds that the agency has not carried its burden. Accordingly, the
Commission reverses the agency decision to dismiss claims (2), (3), and
(6) for untimely EEO contact.
Issue Previously Raised in a Negotiated Grievance Procedure
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that the agency
shall dismiss a complaint or a portion of a complaint where the
complainant has raised the matter in a negotiated grievance procedure
that permits allegations of discrimination. The agency dismissed claim
(1) on the grounds that complainant raised the same matter contained
in a negotiated grievance procedure. Upon review of the record, we
find the complainant raised the same issue in a negotiated grievance
procedure which was decided on December 16, 1998. Therefore, we find
that the agency correctly dismissed claim (1).
Failure to State a Claim
Under 29 C.F.R. � 1614.107(a)(1), in relevant part, an agency shall
dismiss a complaint, or portion thereof, that fails to state a claim.
The Commission finds that complainant's claims (3) and (4) fail to
state a claim. The complainant alleges that the agency did not forward
her forms to the OWCP and that Office of Personnel Management (OPM)
denied her disability retirement application. However, the OWCP claim
was accepted by OWCP and OPM, not the agency, ruled on her disability
retirement application. As such, complainant must contest such claims 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. Accordingly,
the Commission affirms the agency's dismissal of claims (4) and (5).
CONCLUSION
Accordingly, the agency's decision to dismiss complainant's complaint is
affirmed as to claims (1), (4), and (5), and reversed as to claims (2),
(3), and (6) which are remanded to the agency for further processing in
accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims (2), (3), and (6)
in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims 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 (K0501)
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 (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 (T0900)
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 (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
July 11, 2002
__________________
Date