Laura Washington, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency

Equal Employment Opportunity CommissionApr 20, 1999
01983057 (E.E.O.C. Apr. 20, 1999)

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.