01985675
12-27-1999
Sandra Perillo, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Sandra Perillo v. Department of the Treasury
01985675
December 27, 1999
Sandra Perillo, )
Complainant, )
) Appeal No. 01985675
v. ) Agency No. 98-3099M
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
)
DECISION
Complainant timely filed an appeal with the Commission from the final
action taken by the agency concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of
1967, 29 U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act
of 1973, 29 U.S.C. � 791.<1> The appeal is accepted in accordance with
EEOC Order No. 960.001. See 64 Fed. Reg. 37,644, 37,659 (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.402(a)).
Complainant filed a complaint in which she raised thirty incidents
of alleged discrimination on the bases of gender, mental disability
(depression), age (42), and reprisal. Upon reviewing the complaint,
we find that the incidents can be grouped into four separate claims of
discrimination, set forth below.
A. Removal:
Removal on October 31, 1997;
Not properly cleared on last day (10/31/97);
Receipt of proposed removal notice in hallway, May 13, 1997;
Not given feedback on assignments completed between January 3, 1997 and
October 31, 1997;
Not given administrative leave during 30-day proposal period; and
Not given training, guidance or direction during opportunity period.
B. Harassment:
Subjected to hostile work environment; and
Subjected to harassment.
C. Failure to accommodate a disability:
Not provided reasonable accommodations;
Branch chief questioned validity of complainant's medical records;
Branch chief made unannounced visit to complainant's doctor without her
authorization and requested copies of her medical records; and
Branch chief threatened complainant's doctor with a tax audit for the
next five years if the doctor did not provide him with complainant's
medical records.
D. Disparate treatment in employment terms and conditions:
Complainant denied opportunity to speak to director regarding grievances
and concerns;
Complainant did not receive rating of record due on January 17, 1997;
Ratings of record untimely prepared, which delayed within-grade pay
increases;
Workload reviews from 1994 through 1997 contained inaccurate information;
Complainant held to higher standard of performance;
Complainant's assignments well below grade level, and management refused
to expand her duties;
Inaccurate annual appraisals from 1994 through 1997;
Management did not provide complainant with any guidance or assistance;
Complainant did not receive copies of case assignments and closures;
Manager did not disseminate details, group processes, or quality
improvement projects to complainant, or include her in group activities
and other opportunities afforded her peers;
Complainant not allowed to participate in group project that resulted
in her group receiving an award;
Complainant denied opportunity to participate in flexiplace program;
Complainant denied a phone card;
Management reported complainant to inspection when a tax return was
lost;
Management failed to properly maintain complainant's EPF (undefined
term);
Management failed to honor complainant's request for her EPF and drop
files;
Management failed to reimburse complainant for travel; and
Management violated provisions of policy statement 120.
The agency dismissed the entire complaint on various grounds, including:
raising matters raised in a negotiated grievance procedure and in
previous complaints; untimely contact with an EEO counselor; and failure
to provide requested information. In so doing, the agency characterized
each incident as a separate allegation, thereby fragmenting the claims.
As the Commission's revised management directive makes clear, claim
fragmentation is not permitted. EEO Management Directive 110, 5-5
(November 9, 1999). Now that we have defined the claims, we can determine
whether the agency properly dismissed the complaint.
The agency dismissed the removal claim on the grounds that incidents (1)
through (5), and (7), which comprised that claim, had been raised in a
negotiated grievance procedure. EEOC Regulation 29 C.F.R. � 1614.301
gives complainants the choice of presenting their claims through the
administrative EEO complaints process or through a negotiated grievance
procedure. A letter from the agency to complainant's representative dated
April 3, 1998, indicates that the union, acting on complainant's behalf,
grieved the removal on March 31, 1998. Administrative File (AF) 5. On
appeal, complainant has not challenged the agency's determination that
the incidents (2) through (5), and (7) were inextricably intertwined
with incident (1), the removal itself. Therefore, we find that the
agency properly dismissed the removal claim.
The agency dismissed the harassment claim, which consisted of incidents
(9) and (10), for failure to respond to its request for information.
The agency must dismiss complaints where the agency has provided the
complainant with a written request to provide relevant information or
otherwise proceed with the complaint, and the complainant has failed to
respond to the request within 15 days of its receipt, or the complainant's
response does not address the agency's request, provided that the request
included a notice of the proposed dismissal. 64 Fed. Reg. 37,644,
37,656 (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(7)).<2> By letter dated March 13, 1998, the agency informed
complainant that it needed additional information on all of the incidents
identified in the complaint, and that her failure to respond within
fifteen days would result in the dismissal of her complaint. AF 63-66.
Complainant's response did not provide the specific answers that the
agency requested. AF 56. Accordingly, we find that the agency acted
properly in dismissing complainant's harassment claim.
Turning now to the failure-to-accommodate claim, which encompassed
incidents (11) through (14), we find that the agency dismissed these
matters on two separate grounds. It dismissed incidents (11) and
(14), for failure to respond to its request for information. We find
that the agency acted properly in doing so, for the reasons stated in
the preceding paragraph. The agency also dismissed allegations (12)
and (13), but did so on the ground that these matters were raised
in previous EEO complaints. Commission regulations require the
agency to dismiss allegations raised in prior or pending complaints.
64 Fed. Reg. 37,644, 37,656 (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(1)).<3> Documentation provided by the
agency indicates that complainant did raise incidents (12) and (13) in
Complaint No. TD-97-3020. We therefore find that the agency properly
dismissed the failure-to-accommodate claim.
Finally, we address the terms-and-conditions claim, which encompasses
eighteen of the thirty incidents. For the reasons set forth above, we
will affirm the agency's decision to dismiss the portion of the claim
covering incidents (6), (15), (21), and (25) through (30), for failure
to respond to the agency's request for information within fifteen days,
as discussed above. We will also affirm the agency's decision to dismiss
that portion of the claim involving incidents (17) through (20), and (22)
through (24). Documentation from Complaint Nos. 94-3224, 94-3224R,
94-3236, 96-3112, and 97-3020 establishes that the matters in question
were fully addressed in those prior complaints.
The agency dismissed that portion of the terms-and-conditions claim
involving incidents (8) and (16), for untimely counselor contact.
Complainants who believe that they had been discriminated against must
contact an EEO counselor within 45 days of the alleged discriminatory
incident. 29 C.F.R. � 1614.105(a)(1). The counselor's report indicates
that, with respect to the instant complaint, complainant first contacted
an EEO counselor on October 30, 1997. AF 80. Incident (8) occurred on
January 17, 1997. The most recent workload review mentioned in incident
(16) was issued on February 14, 1997, and complainant issued a rebuttal
on February 18th. AF 109.
To determine whether complainant's first EEO counselor contact
was timely, we must determine whether complainant should have had
reasonable suspicion of discrimination within 45 days of that contact.
The time limit for contacting an EEO counselor is triggered as soon
as the complainant reasonably suspects discrimination, not when all
the facts supporting a suspicion of discrimination become apparent.
Peets v. United States Postal Service, EEOC Request No. 05950725 (March
28, 1996); Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990). As previously noted, complainant had filed at least
five other complaints prior to filing this one. She filed the first of
those complaints in 1993. Therefore, given her extensive experience
with the EEO administrative process, she should have had reasonable
suspicion of discrimination as soon as incidents (8) and (16) occurred,
or shortly thereafter.
The agency must nevertheless extend the 45-day time limit if complainant
shows that she was not notified of the time limits and was not otherwise
aware of them, that she did not know and reasonably should not have
known that the discriminatory matter had occurred, that despite due
diligence, she was prevented by circumstances beyond her control from
contacting the counselor within the time limits, or for other reasons
considered sufficient. 29 C.F.R. � 1614.105(a)(2). Complainant has
not presented any arguments or evidence in support of her appeal which
tends to establish any of these circumstances. We therefore find that
the agency correctly dismissed incidents (8) and (16), for untimely
counselor contact. 29 C.F.R. � 1614.107(a)(2).
After a review of the record in its entirety, including consideration
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
dismissing Complaint No. 98-3099M.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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 the 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 the 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 the 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:
Dec. 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Formerly 29 C.F.R. � 1614.107(g).
3 Formerly 29 C.F.R. � 1614.107(a).