01996193
02-02-2001
Nita R. Curley, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Nita R. Curley v. Department of the Navy
01996193
February 2, 2001
.
Nita R. Curley,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01996193
Agency No. DON-99-00183-057
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).<1>
The record shows that complainant started employment with the agency on
April 15, 1996. On August 30, 1998, complainant was declared legally
blind and on September 8, 1998, she applied for disability retirement.
On September 11, 1998, an application for the agency's Computer/Electronic
Accommodations Program (CAP) was submitted on complainant's behalf.
Complainant's disability retirement became effective on October 24, 1998.
By letter dated January 27, 1999, complainant's father wrote to the
agency's Director of Human Resources claiming that �after months of
frustration .. I have been directed to you in order to file an EEO
complaint�. Complainant's father further claimed that at no time �Human
Resources Department, EEO or other representative offered assistance
for employment and CAP�.
On January 29, 1999, complainant sought EEO counseling claiming that she
had been discriminated against on the basis of disability when she was
forced to apply for disability retirement after no accommodation was
provided for her. Subsequently, complainant filed a formal complaint.
The agency dismissed the complaint for untimely EEO Counselor contact.
The agency found that complainant had sought counseling 97 days following
the date of her disability retirement.
On appeal, complainant contends that �starting in August 1998"
numerous attempts were made by complainant's father to find out what
was required to obtain an accommodation for complainant. Among those
allegedly contacted were the agency, the President of the United States,
a United States Senator and the Office of Personnel Management (OPM).
Complainant also claims that �not once during this traumatic time did
they� inform her or her father about her EEO rights. Finally, complainant
argues that there are no posted notices to employees concerning their
EEO rights and that any EEO notice that may exist (not posted) is not
in print large enough for someone who is legally blind. In response
to complainant's appeal, the agency contends that when the agency was
conducting a job search for complainant's reassignment, she did not
manifest an intention to begin the EEO process. The agency also argues
for the first time on appeal that the matter raised in complainant's
complaint does not state a claim
A fair reading of the record persuades the Commission that complainant
was unaware of her EEO rights. At the time in question, complainant
was seeking an accommodation to her physical disability. Once she
was allegedly forced to apply for disability retirement and when the
agency failed to accommodate her, her representative sought assistance
and guidance from the agency, a U.S. Senator, OPM and the President.
The record supports complainant's contention that at no time was she
advised about her EEO rights.
The Commission has consistently held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). Regarding the instant complaint, the agency has not met
this burden. The record shows that the agency has not provided any
evidence to show that complainant was, or should have been, aware of
the 45-day time limit. She claims that there were no EEO posters on
the agency's premises. On appeal, the agency has failed to provide
independent evidence of such posting, for example, an affidavit by an
appropriate agency official.
The Commission notes that for the first time on appeal, the agency argues
that the matter raised in the instant complaint fails to state a claim.
The Commission rejects this argument. Complainant is alleging that the
agency failed to accommodate her disability; clearly, a matter affecting a
term, condition, or privilege of her employment. See Hobson v. Department
of the Navy, EEOC Request No. 05891133 (March 2, 1990).
Based on the foregoing, the agency's final decision dismissing the
complaint for untimely EEO counselor contact is REVERSED. The complaint
is hereby REMANDED for further processing in accordance with the Order
below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 2, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.