01986152_r
08-20-1999
Shirley B. Ritter, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Shirley B. Ritter, )
Appellant, )
)
v. ) Appeal No. 01986152
) Agency No. 8-04-105
Alexis M. Herman, )
Secretary, )
Department of Labor, )
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., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was
issued on July 13, 1998. The appeal was postmarked August 10, 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.
ISSUES PRESENTED
1. The first issue presented on appeal is whether the agency properly
dismissed allegations 4-8 and 10 of appellant's complaint on the grounds
of failure to contact an EEO Counselor in a timely manner.
2. The second issue presented on appeal is whether the agency properly
dismissed allegation 9 of appellant's complaint and the reprisal basis
on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on October 7, 1997.
On May 2, 1998, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her
mental disability (mental bi-polar illness) and in reprisal when:
1. In June and July 1997, management denied her use of a computer to
perform her job functions.
2. Management denied her use of the Leave Donation Program since
September 11, 1997.
3. Management has not promoted her to a GS-12 position although she
has been performing the same duties as a GS-12.
4. Appellant was unfairly evaluated with regard to her performance
evaluation for the years 1992, 1995, 1996, and February 1997.
5. Her supervisor refused to discuss her performance review for 1993-94.
6. Management refused to assist her in completing a CA-7 form to obtain
compensation for lost pay in February 1996.
7. Management failed to provide her with a copy of the Occupation Job
Title Manual until she copied it in March 1997.
8. Management denied her training on the manual until January 1997.
9. Management informed her on August 19, 1997, that her production was
�looking bad�.
10. In 1996, the Administrative Officer contacted her psychiatrist in
an attempt to obtain information.
In its final decision, the agency accepted allegation 1-3, and dismissed
allegations 4-8 and 10 of appellant's complaint on the grounds that
appellant failed to contact an EEO Counselor in a timely manner.
The agency stated that each of the incidents referenced in these
allegations occurred significantly more than 45 days before appellant
initiated contact with an EEO Counselor. Allegation 9 was dismissed on
the grounds of failure to state a claim. The agency noted that managers
have an affirmative duty to provide feedback to employees regarding
their performance. The agency determined that appellant failed to
allege the harm that she sustained as a result of this alleged action.
The reprisal basis of appellant's complaint was also dismissed on the
grounds of failure to state a claim. According to the agency, appellant
was claiming that she was retaliated against for a comment she made
that nepotism or favoritism was involved in a 1995 promotion selection.
The agency determined that an allegation of reprisal in this context is
not within the purview of the EEO Regulations.
On appeal, appellant contends that circumstances beyond her control
prevented her from contacting an EEO Counselor in a timely manner.
Appellant stated that she brought Title VII violations to the attention of
her Supervisor on February 27, 1995, but that she hesitated to pursue the
matters because of his very threatening manner. According to appellant,
she raised these violations with the Regional Commissioner in March
1995, but her non-responsiveness in combination with the Supervisor's
belligerence intimidated her into not pursuing her concerns. Further,
appellant states that in March 1996, she was hospitalized due to her
mental disability, and she was away from work for a period of time.
Appellant claims that she had another relapse in her mental condition in
September 1997. Appellant maintains that various remarks and comments
made regarding her personality, behavior, and demeanor are untrue and
unfounded. With regard to her claim of reprisal, appellant maintains that
her outspokenness concerning Title VII violations has caused her to be
treated less favorably. According to appellant, her workload has become
smaller since she mentioned Title VII violations to management in February
and March 1995. Appellant further argues that after she complained to
management in September 1995, about favoritism/nepotism in a promotion,
she was not ranked among the top eight in a listing of Field Economists,
and she was in the last group to be trained in a new program.
In response, the agency reiterates its rationale for its dismissal of
certain allegations. With regard to allegation 9, the agency states that
its Managers have an affirmative duty to provide feedback to employees
regarding their performance. Moreover, the agency asserts that appellant
did not state how she was harmed by this act. With regard to allegation
10, the agency maintains that the contact of appellant's psychiatrist
occurred in 1996, during or following appellant's return from an extended
period of sick leave. As for appellant's allegation of reprisal, the
agency states that charging management with nepotism or favoritism does
not state a claim within the meaning of the EEOC regulations.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (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) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
Appellant initiated contact with an EEO Counselor on October 7, 1997.
The incidents that were dismissed by the agency on the grounds of
untimely EEO contact occurred over the period of 1992 to March 1997.
Appellant's EEO contact was clearly after the expiration of the 45-day
limitation period. Appellant appears to argue that the hostility of
certain agency officials caused her to delay initiating EEO contact.
The Commission has determined that fear of reprisal, without more, will
not toll the applicable EEO time limitation. Croft v. Department of
the Army, EEOC Request No. 0597-699 (August 1, 1997). This argument
does not constitute adequate justification for appellant's untimely
EEO contact. Appellant also appears to claim that her mental disability
contributed to her untimely EEO contact. The Commission has held that
a complainant's failure to meet the filing deadline will be excused only
if the complainant establishes that she was so physically or emotionally
incapacitated that they were unable to make a timely filing. See Zelmer
v. USPS, EEOC Request No. 05890164 (March 9, 1989) and Hedgepath v. USPS,
EEOC Request No. 05940478 (January 6, 1995). However, appellant has
failed to submit sufficient argument or evidence to establish that she
was rendered so incapacitated as to be unable to timely contact an EEO
Counselor. Accordingly, the agency's dismissal of allegations 4-8 and
10 of appellant's complaint on the grounds of untimely EEO contact was
proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
In the present case, the agency dismissed allegation 9 on the grounds of
failure to state a claim. Appellant contends that she was discriminated
against when management informed her that her production was �looking
bad�. We find that appellant has not stated a claim with regard to
this allegation. The Commission has consistently held that a remark or
comment, unaccompanied by concrete effect, is not a direct and personal
deprivation sufficient to render and individual aggrieved for purposes
of Title VII. See Simon v. United States Postal Services, EEOC Request
No. 05900866 (October 3, 1990). Accordingly, the agency's decision to
dismiss allegation 9 of appellant's complaint for failure to state a
claim was proper and is AFFIRMED.
With regard to the dismissal of the basis of reprisal, we find that
appellant did claim that the retaliation against her was in part based on
her outspokenness with regard to Title VII violations. We find therefore
that this basis was improperly dismissed. However, an investigation
of appellant's claims of reprisal must not take into account incidents
that appellant argues were solely the result of her accusations of
favoritism/nepotism. Statements regarding favoritism/nepotism are not
matters upon which a claim of reprisal can be based. Accordingly, the
agency's decision to dismiss the basis of reprisal is MODIFIED for the
reasons stated herein.
CONCLUSION
The agency's decision to dismiss allegations 4-8 and 10 on the grounds
of untimely EEO contact is hereby AFFIRMED. The agency's decision
to dismiss allegation 9 on the grounds of failure to state a claim is
hereby AFFIRMED. The agency's decision to dismiss the reprisal basis
of appellant's complaint is hereby MODIFIED.
ORDER
The agency is ORDERED to include the basis of reprisal for prior protected
EEO activity in the further processing of allegations 1-3. The agency
shall notify appellant of the inclusion of this basis within fifteen
(15) calendar days of the date this decision becomes final. A copy of
the agency's notice to appellant must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision 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 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.
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:
August 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations