01983057
04-20-1999
Laura Washington, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency
Laura Washington v. Department of the Treasury
01983057
April 20, 1999
Laura Washington, )
Appellant, )
) Appeal No. 01983057
v. ) Agency No. 98-3010
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the date of actual receipt of the final
decision of the agency concerning her allegation that the agency violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section
2000e, et seq, and the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. �621 et seq.. The appeal is accepted by the Commission
in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim, failure to cooperate, and untimely
contact with an EEO Counselor.
BACKGROUND
Appellant contacted an EEO counselor on April 1, 1997, and on October 30,
1997, filed a formal complaint of discrimination on the basis of race
(Black), color (fair skinned), sex (female), age (DOB May 6, 1956),
religion (Catholic), disability (on-the-job injury), and retaliation
(prior EEO activity) alleging (1) present acts involving a negative
working environment, adverse treatment and harassment; and (2) past
events including management keeping a log and files on her, harassing
her, not advancing sick leave from March 5, 1996 through April 15,
1996, and delaying filing of her workers compensation claim from May 15,
1996 until July 29, 1996.
Appellant was on extended leave from March 1995, through March 1997,
due to disabilities sustained in a car accident. A "disability
certificate"<1> dated December 10, 1996, listed appellant as "totally
incapacitated" with an expected date for return to work as February 18,
1997. Appellant's doctor provided a note dated February 18, 1997, stating
appellant was under his care for severe anemia and was advised to rest
at home for two weeks. Appellant returned to the agency on March 31,
1997, and initiated contacted with an EEO counselor on April 1, 1997.
On November 19, 1997, the agency requested that appellant clarify
her past allegations within fifteen days and warned that failure to
respond would result in dismissal of that portion of the complaint.
Appellant did not respond. In a letter dated December 18, 1997, the
agency informed appellant it had accepted the present allegations for
investigation and again asked for clarification of the allegations of
"past discrimination." On December 22, 1997, appellant phoned the EEO
specialist to state she did not receive the November 19, 1997, letter.
The specialist faxed appellant a copy of the letter and requested a
response by January 2, 1998. Appellant failed to respond.
On January 8, 1998, the agency issued its final agency decision (FAD)
in which it accepted appellant's present allegations for investigation,
and dismissed her past allegations for failure to state a claim and
failure to respond and cooperate within fifteen days of the agency's
request for clarification. Appellant's allegation that processing of
her workers compensation claim was delayed due to discrimination was
dismissed for untimely contact with an EEO counselor.
Appellant filed an appeal dated March 16, 1998<2>. Appellant argues
her back injury prevented her from contacting an EEO counselor within
45 days of July 29, 1996. Appellant argues she was sick with flu from
December 22, 1997, to January 9, 1998, and was therefore, unable to
respond to the agency's requests for information.
ANALYSIS AND FINDINGS
An agency shall dismiss a complaint or portion of a complaint where
the agency has provided the appellant with a written request to provide
relevant information within fifteen days of receipt of the request and
the appellant has failed to respond, provided the request includes a
notice of the proposed dismissal. 29 C.F.R. �1614.107(g).
The Commission finds appellant failed to cooperate and provide information
and clarification as requested by the agency in its November 19, 1997,
and December 18, 1997, letters and December 22, 1997, telephone call.
The record indicates the agency afforded appellant a total of 45 days to
respond, and made numerous attempts to contact her by phone in December
1997, and January 1998, leaving telephone messages to which appellant
failed to respond.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age, or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined as "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). The Commission finds appellant fails to
demonstrate an injury, and therefore, fails to state a claim when she
alleges the agency discriminated against her by delaying processing of
her workers' compensation claim.
In addition the Commission finds appellant failed to timely contact an
EEO counselor. If appellant suspected discrimination in the delay, she
should have contacted an EEO counselor within 45 days of July 29, 1996,
as per EEOC Regulation 29 C.F.R �1614.105(a)(1). The record indicates
appellant has experience with both grievance and EEO procedures,<3>
and therefore, should be aware of the filing time requirements.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
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 (S0993)
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. 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:
April 20, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations
1 It is not clear for what purpose the certificate was created.
The Commission notes that the "certificate" does not explain why
appellant was considered "totally incapacitated."
2 Appellant states she was unable to get to the post office to pick up
and sign for the FAD before it was returned to the agency.
3 Appellant filed a complaint of discrimination on April 12, 1996, and
filed grievances in June 1994, and on March 22, 1995, August 9, 1995,
April 23, 1997, May 26, 1997, and June 6, 1997.