01A23485_r
03-04-2003
Teresa M. Bonk, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Teresa M. Bonk v. Department of Transportation
01A23485
March 4, 2003
.
Teresa M. Bonk,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A23485
Agency No. 3-02-3025
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 3, 2002, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
On October 18, 2001, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful. In her
formal complaint filed on January 23, 2002, complainant alleged she was
subjected to harassment on the basis of disability. Complainant further
alleged that as a result, she �had no alternative but to retire . . .�
In a final decision dated June 3, 2002, the agency determined that
complainant's complaint was
comprised of seven claims, that were identified in the following fashion:
(1) the command was not accommodating with complainant's disability;
(2) the command discriminated against her because of her disability;
(3) her supervisor disliked her because of her disability and was
annoyed and impatient;
(4) the agency harassed her by seeking more medical information from
her doctor;
(5) the agency provided no formal training for her new job;
(6) the agency placed her in an AWOL status; and
(7) the agency had no compassion for her disability even after she
attempted suicide.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency determined that the most recent alleged
discriminatory event was the matter raised in claim 6, and that this
matter occurred on May 24, 2001. The agency then determined that
complainant's initial EEO Counselor contact on October 18, 2001, was
untimely with regard to all seven claims.
On appeal, complainant argues that the agency intentionally made her
work situation so intolerable that she was forced to retire from agency
employment. Complainant also argues that her EEO contact was timely
based on her retirement approval date of September 15, 2001.
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 forty-five (45) days of the effective date of the action.
The Commission finds that the agency inappropriately framed complainant's
complaint when it construed the matters raised therein as being comprised
of seven separate claims. Rather, a fair reading of the record and
complainant's statement on appeal, reflects that complainant claimed
that she was subjected to discriminatory harassment that forced her to
retire from agency employment. Complainant's retirement was effective
in September 2001, complainant contacted an EEO Counselor on October
18, 2001. We find that complainant's EEO Counselor contact regarding
the constructive discharge claim was timely raised.<1> Moreover,
as complainant claims that agency harassment forced her retirement,
and because complainant timely contacted an EEO Counselor regarding the
constructive discharge claim, we determine that complainant's initial
EEO contact is timely regarding all the matters raised in her formal
complaint.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint as identified herein
is 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 complaint of harassment, including
the constructive discharge claim, 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 (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
March 4, 2003
__________________
Date
1On appeal, complainant argues that her
retirement was effective September 15, 2001. The EEO Counselor's
report indicated that the retirement was effective September 12, 2001.
The disparity in dates does not affect our disposition in this case.