01983294
03-26-1999
Nanette Desiree, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Nanette Desiree v. Department of the Treasury
01983294
March 26, 1999
Nanette Desiree, )
Appellant, )
)
v. ) Appeal No. 01983294
) Agency No. 98-1145
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
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 the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The final agency decision was received by appellant on March
20, 1998. The appeal was postmarked March 25, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed part of
appellant's complaint.
BACKGROUND
Appellant contacted an EEO counselor on December 1, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when (1) the agency failed to accommodate her
physical disability following her injury in a chemical spill in 1996
and (2) her supervisor asked appellant if she would consider dating
a married man. Informal efforts to resolve appellant's concerns were
unsuccessful. Thereafter, appellant filed a formal complaint alleging
that she was the victim of unlawful employment discrimination on the
basis of physical disability (lupus, chronic fatigue syndrome, multiple
chemical sensitivity and reactive arthritis).
On March 18, 1998, the agency issued a final decision (FAD) dismissing
appellant's complaint on the grounds that it stated the same claims
already decided by the agency and alternatively that appellant failed to
timely initiate EEO contact. Specifically, the agency determined that
appellant had previously raised allegations (1) and (2) in complaint
No. TD 97-1352. The FAD also determined that appellant's December 1,
1997 EEO contact was beyond the time limitations required by EEOC
Regulations. On appeal, appellant contends that the instant complaint
does not raise the same claims as those raised in TD 97-1352 because the
instant complaint alleges that she has been discriminated against based
on having Lupus. Appellant states that she had not yet been diagnosed
with Lupus in 1996 when she filed complaint No. TD 97-1352.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss 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.
Upon review, the Commission determines that the agency properly dismissed
appellant's complaint pursuant to 29 C.F.R. �1614.107(a). The record
contains a copy of the FAD dated September 22, 1997 addressing complaint
No. TD 97-1352 filed by appellant on August 22, 1997. Therein, the agency
dismissed appellant's complaint allegations as untimely. Complaint No. TD
97-1352 alleged (1) that she had been harmed by a chemical spill which
occurred in May 1996 and (2) that in October or November of 1996 her
supervisor asked if she would consider dating a married man.
The Commission finds that the allegations which are the subject of the
instant appeal are identical to those previously raised by appellant in
August 1997. It appears, however, that appellant is attempting to add
Lupus as a new basis upon which the agency discriminated against her.
The Commission determines that the agency's dismissal of appellant's
complaint was proper.
CONCLUSION
Accordingly, the agency's decision is hereby AFFIRMED for the reasons
set forth herein.
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:
March 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations