01A00375
07-09-2002
Patricia A. McGurn, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Patricia A. McGurn v. Department of Defense
01A00375
July 9, 2002
.
Patricia A. McGurn,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A00375
Agency No. 99-DCW-12G-047
DECISION
INTRODUCTION
Complainant initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female), age (66), and disability (on-the-job injury),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq.
ISSUE PRESENTED
The issues on appeal are whether the agency properly dismissed
complainant's claims for failure to meet applicable time limits.
BACKGROUND
Complainant is employed as a cashier at the agency's McChord Air Force
Base. Complainant filed a formal complaint on May 19, 1999, alleging
discrimination when:
when in September 1993 and October 1993, complainant's supervisor failed
to provide proper guidance for her Workers' Compensation claim based on
complainant's sex (female), age (55), and disability (on-the-job injury);
in September 1995, based on her disability, complainant's supervisor
failed to honor her modified job description which further aggravated
her condition;
since 1995, complainant has received performance evaluations which noted
that her supervisor was �unable to rate due to medical condition;� and
from September 1993 through April 1997, complainant was told that she
should retire by her supervisors due to her age.
On June 7, 1999, the agency issued its FAD dismissing claims (1), (2),
(4) for failure to raise a matter in a timely manner. The agency further
dismissed claim (3) but failed to state its reason for its dismissal.
On July 12, 1999, complainant filed an appeal to the Merit Systems
Protection Board (MSPB). The Board issued an initial decision on August
16, 1999, dismissing the claims because the Board lacks jurisdiction.
Upon receiving the MSPB's decision, complainant filed an appeal of
the FAD and a petition for review of the MSPB's initial decision.
The Commission has denied complainant's petition for review.
ANALYSIS AND FINDINGS
Initially, the Commission notes that we find complainant timely appealed
the FAD. The Civil Service Reform Act, 5 U.S.C. � 7702(f), provides
that in any case in which an employee files an appeal in a timely
fashion but with an agency other than the agency with which the appeal
is supposed to be filed, the employee shall be treated as having timely
filed the appeal as of the date it is filed with the proper agency.
The record indicates that complainant received the FAD on June 11,
1999 and the MSPB appeal was received on July 12, 1999. Accordingly,
we find that complainant timely filed an appeal with MSPB and therefore,
this appeal to the Commission will be considered timely.
Merits of a Claim prior to Investigation
In claim (3), complainant argues that she was discriminated when it was
noted that she could not be rated due to her medical condition. In its
FAD, the agency concluded that complainant was incorrect in her claim
for she was limited in her position due to her doctor's restrictions.
In dismissing the claim in such a manner, the agency has determined that
this claim by complainant is not true. This goes to the merits of the
complaint and is irrelevant to the procedural issue of whether complainant
has stated a justiciable claim under the regulations. See Ferrazzoli
v. United States Postal Service, EEOC Request No. 05910642 (August
15, 1991). Therefore, we find that the agency has acted prematurely
in addressing the merits of complainant's claim without having first
conducted a factual investigation.
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in 29 C.F.R. � 1614.105,
29 C.F.R. � 1614.106, and � 1614.204(c), unless the agency extends the
time limits in accordance with � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond her control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The EEO counselor's report indicates that complainant contacted an EEO
counselor on March 8, 1999, regarding her claims. Of complainant's
claims, the latest incident occurred through April 1997. On appeal,
complainant alleges through her representative that she was not aware of
the time limits and that the agency neglected to promote and maintain
an EEO program. Further, she argues that when she learned of the EEO
process, she attempted to make contact with the EEO Office, but was
denied counseling.
Where, as here, there is an issue of timeliness, "[a]n agency always
bears the burden of obtaining sufficient information to support a
reasoned determination as to timeliness." Guy, v. Department of Energy,
EEOC Request No. 05930703 (January 4, 1994). In addition, in Ericson
v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993),
the Commission stated that the agency has the burden of providing evidence
and/or proof to support its final decisions. See Gens v. Department
of Defense, EEOC Request No. 05910837 (January 31, 1992). Further,
the Commission imputes constructive knowledge of EEO procedures to an
employee when an agency complies with notice posting requirements. The
agency was required to produce evidence that it took sufficient actions
to justify the inference of constructive knowledge. The Commission has
held that blanket conclusions, without supporting affidavits or other
evidence, were insufficient to demonstrate the agency had complied with
posting requirements and it declined to impute knowledge of the EEO
complaint process to the employee. Thompson v. Department of the Army,
EEOC Request No. 05910474 (September 12, 1991).
Upon review of the record, the agency failed to include any other
evidence, such as affidavits, which would prove that there were EEO
postings in prominent locations at the time of alleged incidents.
Although the agency included a posting dated December 2, 1997, the
incidents occurred prior to the date of the notice. Further, the
agency has not addressed complainant's claims that she tried to get EEO
counseling but was denied. The Commission finds that the agency has
not carried its burden. Accordingly, the Commission reverses the agency
decision to dismiss claims (2), (3), and (4) for untimely EEO contact.
Failure to State a Claim
Under 29 C.F.R. � 1614.107(a)(1), in relevant part, an agency shall
dismiss a complaint, or portion thereof, that fails to state a claim.
The Commission finds that complainant's claim (1) fails to state a claim
of employment discrimination. The complainant alleges that her supervisor
failed to provide her with the guidance in filling out her Workers'
Compensation forms. If so, the complainant must contest such claims to
DOL in the DOL process. She cannot obtain a remedy from the EEO process
for the agency's alleged wrongdoing in the DOL process. Accordingly, the
Commission dismisses claim (1) for failure to state a claim. See Moreno
v. Department of the Treasury, EEOC Request No. 05940139 (Oct. 28, 1994).
CONCLUSION
Accordingly, the agency's decision to dismiss complainant's complaint
is AFFIRMED in part, and REVERSED in part. Claim (1) is dismissed for
failure to state a claim. Claims (2), (3), and (4) are REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims (2), (3), and (4)
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
July 9, 2002
__________________
Date