0120090791
04-08-2009
Mary M. Bauer, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Mary M. Bauer,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120090791
Agency No. 080017802191
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 10, 2008, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of sex (female), disability
(membrane sensitivity syndrome), and reprisal for prior protected EEO
activity under the Rehabilitations Act when:
1. On an unspecified date, a management official (RMO1) made up his own
clinical diagnosis of complainant's medical condition and told her obtain
a medical certificate stating RMO1's diagnosis;
2. On unspecified dates, RMO1 told complainant to stay at her desk
"until she felt sick and then go home";
3. On an unspecified date RMO1 reported complainant as Absent Without
Leave (AWOL);
4. On unspecified dates, RMO1 ignored significant technical input from
complainant over male coworkers sharing the same project;
5. RMO1 asked complainant "why did you ever become an electromagnetic
engineer if you can't be around RF?"
6. After October 2, 2007, RMO1 cancelled all of complainant's scheduled
training classes;
7. On an unspecified date, management officials, including the Security
Manager (RMO2) colluded to falsify medical and security information;
8. On October 2, 20071 RMO2 entered a security incident involving
complainant "into the JPAS system";
9. On unspecified dates, RMO2 disseminated erroneous information to
complainant and other government officials and unspecified individuals
lost or mishandled unspecified documents, including complainant's bank
information; and
10. On an unspecified date, RMO2 obtained medical information from a
psychiatrist who was not board certified and who kept no written records.
The agency characterized the claims differently. In its Final Agency
Decision (FAD), the agency listed the claims as follows:
1. complainant was subjected to an ongoing hostile work environment
between September 21, 2007 and October 2, 2007 when she reported
incidences [sic] considered by complainant as Whistle Blower's Act
activities under an administrative grievance;
2. complainant was denied all training after reporting safety and health
concerns to the supervisory chain of command;
3. RMO1 ignored significant technical input from complainant over other
male co-workers, and asked complainant "Why did [you] ever become an
electromagnetic engineer if [you] can't be around RF?"; and
4. complainant was required to respond to the adjudication requirements of
maintaining her security clearance managed by the DON Central Adjudication
Facility (DONCAF) for her position as a Senior Engineer, ND-0830-04,
with the Naval Surface Warfare Center Dahlgren Division (NSWCDD),
Electromagnetic and Sensor Systems (Q) Department, at Dahlgren, Virginia.
The agency dismissed the claims for untimely EEO contact, noting that the
events occurred more than 45 days prior to complainant's EEO counselor
contact on July 21, 2008. In addition, the agency found that claim 4
(identified in the FAD as claim d.) failed to state a claim because
the matter contained allegations "which fall under the purview of the
Freedom of Information Act (FOIA)" FAD, p. 5, and that complainant
should have addressed the claim under the appropriate FOIA regulations.
The FAD further indicated that claim d. failed to state a claim because
the EEOC does not have jurisdiction to review matters relating to the
denial of security clearances. Finally, we note that, while the FAD did
not include complainant's claim concerning the psychiatrist who was not
board certified as one of the listed claims on the front page of the FAD,
the body of the FAD did discuss this claim. The FAD found complainant's
counselor contact to be untimely on this matter, noting that the events
occurred on November 2, 2007 and complainant did not contact a counselor
until July 21, 2008.
On appeal, complainant argues that her EEO counselor was not untimely
because these matters are not matters over which the EEOC has
jurisdiction. We note, however, that if the EEOC has no jurisdiction
over these matters then they should be dismissed for that reason.
To the extent complainant is claiming she incurred discrimination,
however, the Commission generally does have jurisdiction and as such,
the EEOC timelines for contacting a counselor apply and complainant's
counselor contact was therefore untimely. In this regard we note that
complainant has not provided dates for most of the incidents, and those
dates she does provide are more than 45 days before her July 21, 2008
counselor contact. We therefore find that her counselor contact was
untimely and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 8, 2009
__________________
Date
1 In her Formal Complaint, dated September 9, 2008, complainant provides
this date as October 2, 2008. We note that the events described would
not yet have occurred by the time the Formal Complaint was filed and
we therefore assume complainant meant October 2, 2007. This assumption
is reinforced by complainant's statement in the next sentence "this was
the same day, October 2, 2007, that..." See Formal Complaint.
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0120090791
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090791