01986673
11-05-1999
Barbara A. Wagner, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Barbara A. Wagner v. Department of the Treasury
01986673
November 5, 1999
Barbara A. Wagner, )
Appellant, )
)
v. ) Appeal No. 01986673
) Agency No. 98-3197
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 14, 1998, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a), (b), and (e). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant filed a complaint on May 30, 1998, alleging discrimination
based on physical disability. The appellant subsequently wrote the
agency regarding additional "allegations" and "issues." After seeking
clarification, the agency issued a decision, wherein the agency noted its
prior acceptance of one claim (termination) and dismissed the remaining
allegations (denial of reasonable accommodation; denial of overtime;
failure to refer the appellant to an Employee Assistance (EAP) program;
issuance of a mid-year performance appraisal; and a requirement that she
call the agency daily, while she moved from one residence to another).
Regarding the reasonable accommodation claim, the Commission finds that
the agency erred when it dismissed this matter on the grounds that it
was moot. The appellant's complaint alleges that her assignment from June
1997 to September 1997 caused her pain. The Commission finds that this
is sufficient to raise a compensatory damages claim. When a complainant
seeks compensatory damages, the agency must request objective evidence
of the damages incurred and objective evidence linking the damages to the
alleged discrimination prior to dismissing a complaint on the ground that
it is moot. The agency must also address the sufficiency of any damages
evidence in its decision. Salazar v. Department of Justice, EEOC Request
No. 05930316 (February 9, 1994). Therefore, the Commission reverses
the agency's dismissal of the appellant's reasonable accommodation claim.
Regarding the overtime claim, The Commission finds that this matter
states a claim concerning the appellant's terms and conditions of her
employment. See Cobb v. Department of the Treasury, EEOC Request No.
05970077 (March 13, 1997).
Regarding the EAP claim, this matter addresses the agency's alleged
failure to inform the appellant of her right to a benefit of her
employment on two occasions. Accordingly, the Commission reverses the
agency's dismissal of the appellant's overtime and EAP claims.
Regarding the appellant's mid-term performance appraisal, the Commission
finds that the agency should investigate this matter as part of her
termination claim. The appellant is not alleging discrimination regarding
her mid-term appraisal, but rather, she relies on the appraisal as
reflecting that she did not have the purported performance problems that
ultimately led to her termination. Accordingly, the Commission finds that
the agency erred when it treated the appellant's performance appraisal
allegation as a separate claim of discrimination. See Cobb, supra.
Finally, the Commission affirms the agency's dismissal of the appellant's
remaining allegation (the requirement that she call in daily when moving
from one residence to another). The agency dismissed this allegation
for failure to raise the matter before an EEO Counselor. However, we find
the matter more properly analyzed in terms of whether it states a claim.
The Commission finds that this incident does not rise to the level of
a change in the appellant's terms and conditions of employment, and,
therefore, fails to state a claim.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of one allegation; REVERSES the agency's dismissal of other
allegations; and REMANDS the appellant's complaint to the agency for
processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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� (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. 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 (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:
11/05/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations