01985837_r
09-09-1999
Linda D. Edwards, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Linda D. Edwards, )
Appellant, )
)
v. ) Appeal No. 01985837
) Agency No. DOT-6-98-6090
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final decision was issued
on June 23, 1998. The appeal was postmarked July 22, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
The record reflects that appellant initiated EEO Counselor with regard
to the matters raised in the instant complaint, on April 9, 1998.
The record further reflects that appellant filed a formal complaint on
April 27, 1998 (Agency No. DOT 6-98-6069).
On May 12, 1998, appellant filed a formal complaint that is the subject
of the instant appeal, alleging that she was the victim of unlawful
employment discrimination on the bases of race, color, sex, disability,
and reprisal.
By letter dated June 23, 1998, the agency informed appellant that the
following issues were accepted for investigation in the complaint filed
on April 27, 1998 (Agency No. DOT 6-98-6069):
The FAA discriminated against you because of [race, color, sex, disability
and reprisal] when due to an injury you were unable to climb the stairs
at the Bakersfield ATCT/Tracon to perform your duties. Although you
were denied a reasonable accommodation, you were offered an alternative
position at the High Desert Tracon. Because you were denied reasonable
accommodations at both facilities, you were terminated from the FAA on
March 1, 1998.
On June 23, 1998, the agency also issued a final decision on the
instant complaint. Therein, the agency determined that the instant
complaint was comprised of three allegations, that were identified in
the following fashion:
1. On November 26, 1995, your pay was reduced when you were reassigned
to the Bakersfield ATCT/Tracon.
2. In 1996, the Bakersfield ATCT/Tracon did not accommodate your
disability.
3. On March 1, 1998, you were terminated.
The agency dismissed allegations 1 and 2 for failure to initiate contact
with an EEO Counselor in timely fashion. The agency dismissed allegation
3 on the grounds that appellant raised the issue of her termination
from agency employment in a previously filed EEO complaint (Agency
No. DOT-6-98-6069).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Regarding allegation 1, appellant's initial EEO Counselor contact in
April 1998, was more than forty-five days after the reduction in pay
purportedly occurred, in November 1995. Appellant failed to present
adequate justification pursuant to 29 C.F.R. �1614.105(a)(2), for
extending the limitation period beyond forty-five days. Accordingly, the
agency's decision to dismiss allegation 1 for failure to initiate contact
with an EEO Counselor in a timely fashion was proper and is AFFIRMED.
The Commission notes that although the agency dismissed allegation 2 on
the grounds of untimely EEO Counselor contact, this allegation, as well
as allegation 3, are properly analyzed in terms of whether appellant
raised the matters contained therein in a previously filed EEO complaint.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that a complaint or a
portion of a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
In a letter dated June 23, 1998, the agency informed appellant that
the following allegations raised in a complaint filed on April 27, 1998
(Agency No. DOT-6-98-6069) were accepted for investigation: appellant
was denied reasonable accommodation at the agency's Bakersfield and
High Desert facilities; and she was thereafter terminated from agency
employment. In allegations 2 and 3 of the instant complaint, appellant
alleged that she was denied reasonable accommodation at the agency's
Bakersfield facility and was terminated from agency employment on March
1, 1998. We find that the matters raised in allegations 2 and 3 were
raised in a previously filed complaint (Agency No. DOT-6-98-6069).
Accordingly, the agency's decision to dismiss allegations 2 and 3 was
proper for the reasons set forth herein and 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. 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 filed your appeal with the
Commission. 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. 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:
Sept. 9, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations