01975016
01-14-1999
Paula Fisk, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Paula Fisk v. Department of the Navy
01975016
January 14, 1999
Paula Fisk, )
Appellant, )
)
v. ) Appeal No. 01975016
) Agency No. DON97-60259-004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
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., the Age Discrimination in Employment Act of
1967, as amended (ADEA), 29 U.S.C. �621 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 May 9, 1997. The appeal was postmarked June 7,
1997. 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.
On January 7, 1997, appellant initiated contact with an EEO Counselor.
On February 4, 1997, the agency issued appellant a Notice of Final
Interview, which was received by appellant on February 14, 1997.
Therein, the agency noted that appellant had undergone EEO counseling
on the following actions purportedly taken by the agency: failure to
provide her reasonable accommodation; transmission of confidential
information to her former attorney; failure to provide her with a
letter of acceptance/consolidation; submission of false information
to the Department of Labor; denial of her request for additional time
to recuperate and, if this request were not granted, time to file for
retirement while still in medical benefits status; continued sexual
harassment; and removal from her position as a Career Resource Specialist
without a required notice. Appellant was informed that if she did not
file a formal complaint within fifteen days of her receipt of the Notice
of Final Interview, her complaint may be dismissed as untimely.
By fax transmission on March 7, 1997, appellant sent the agency numerous
formal complaints alleging unlawful employment discrimination on the
bases of sex, age, disability, and reprisal. These complaints were
consolidated under Agency No. DON97-60259-004. Appellant's complaint
was comprised of the matters that were addressed in the Notice of Final
Interview of February 4, 1997, and several other allegations relating to
the purported failure of agency officials to provide her with assistance
or intervene on her behalf.
On May 9, 1997, the agency issued a final decision. Therein, the agency
determined that appellant's consolidated complaint was comprised of nine
allegations that were identified in the following fashion:
a. Were you removed/constructively discharged from your position as
Career Resources Specialist and Spouse Employment Coordinator, with no
notice given on December 20, 1996?
b. Were you harassed and forced to endure a hostile work environment
when the Director, family Services Center referred to you as "crazy,"
and used profane language to describe African-Americans, the disabled,
individuals of other ethnic backgrounds, and your former Deputy Director?
c. Did your former Commanding Officer deny you reasonable accommodation
in terms of flexiplace, flexible work hours, and additional official
time to recuperate as well as time to file for medical or immediate
retirement while still in medical benefits status on December 17, 1996?
d. Was a confidential letter sent to your former attorney by the Human
Resources Office, Formal Complaints Branch in December 1996?
e. Did you not receive your acceptance/consolidation letter from the
HRO Formal Complaints Branch in December 1996?
f. Were you notified of your removal after the fact by the HRO Employee
Benefits Office subsequent to December 20, 1996?
g. Did the Commander, Naval Air Force, Pacific Fleet, ignore your
request for assistance in January 1997?
h. Were you provided advice by a Naval Executive Officer to call a
crisis hotline about your concerns in January 1997?
i. Did the Commander Naval Base, San Diego, not intervene on your behalf
and, instead, refer you to the Merit Systems Protection Board or EEO
complaint process in January 1997?
The agency dismissed allegations (a) - (g) on the grounds that appellant
filed an untimely EEO complaint. Specifically, the agency found that
appellant received a Notice of Final Interview on February 14, 1997, and
that she did not file a formal complaint until March 7, 1997, which was
beyond the fifteen-day limitation period for filing a timely complaint.
The agency dismissed allegations (h) and (i) for failure to state a claim,
and dismissed allegation (g) on the alternative grounds of failure to
state a claim.
On appeal, appellant argues that when she filed the formal complaint
on March 7, 1997, she had been on anti-depressant medication for
approximately two or three days, and that tension headaches, crying
spells, and fatigue had dissipated sufficiently for her to finally prepare
the paperwork relating to filing a formal complaint. Appellant argues
that she would have timely filed the formal complaint if she had not been
ill and if she had not been consumed with obtaining medication to control
symptoms for her various illnesses. Appellant also argues that she was
rendered aggrieved by the matters set forth in allegations (g) - (i).
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a complaint required by 29 C.F.R. �1614.105(d), (e) or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106, and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
Regarding allegations (a) - (g), appellant alleged that her delay
in filing a formal complaint was attributable to attempting obtaining
medication to control symptoms for various illnesses. When an appellant
claims that a physical condition prevents her from meeting a particular
filing deadline, we have held that in order to justify an untimely filing,
the appellant must be so incapacitated by the condition as to render
her physically unable to make a timely filing. See Zelmer v. USPS,
EEOC Request No. 05890164 (March 8, 1989). The same is true regarding
claims of incapacity related to psychiatric or psychological conditions.
See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992).
Nothing in the record supports appellant's contention that she was so
incapacitated during the applicable fifteen-day period as to prevent
her from timely filing a formal complaint. Appellant has failed
to present adequate justification, pursuant to 29 C.F.R. �1614.604(c)
for extending the filing period. Accordingly, the agency's decision to
dismiss allegations (a) - (g) on the grounds that appellant's complaint
was untimely filed was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. An agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In allegation (h), appellant alleged that an agency official improperly
suggested she contact a crisis hotline in January 1997; in allegation
(i), appellant alleged that an agency Commander did not intervene on her
behalf but, instead, referred her to the Merit Systems Protection Board
or the EEO complaint process. The Commission determines that neither
allegation addresses a loss or harm relating to a term, condition, or
privilege of appellant's employment. Accordingly, the agency's decision
to dismiss allegations (h) and (i) for failure to state a claim was
proper and is AFFIRMED.<1>
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. 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 (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:
Jan. 14, 1999
DATE Ronnie Blumenthal, Director
1 Because we affirmed the agency's decision to dismiss allegation
(g) as untimely, we find it unnecessary to address the agency's decision
to dismiss this allegation on alternative grounds.