Benzena M. Brown, Appellant,v.William S. Cohen, Secretary of Defense, Department of Defense, (Defense Finance and Accounting Service), Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01994008 (E.E.O.C. Nov. 8, 1999)

01994008

11-08-1999

Benzena M. Brown, Appellant, v. William S. Cohen, Secretary of Defense, Department of Defense, (Defense Finance and Accounting Service), Agency.


Benzena M. Brown v. Department of Defense

01994008

November 8, 1999

Benzena M. Brown, )

Appellant, )

)

v. ) Appeal Nos. 01994008

) 01996886

William S. Cohen, ) Agency No. DFAS-DE-SANB-99-007

Secretary of Defense, )

Department of Defense, )

(Defense Finance and )

Accounting Service), )

Agency. )

)

DECISION

The appellant timely filed appeals with this Commission from final

decisions, dated March 4, 1999 and August 12, 1999, which the agency

issued pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), (b), and (g).

Both appeals involve the same formal EEO complaint. The Commission

accepts and consolidates the appellant's appeals in accordance with EEOC

Order No. 960, as amended, and 29 C.F.R. �1614.606.

The March 4, 1999 decision dismissed eleven complaint allegations on

the ground that they had been raised in the appellant's prior complaint

(agency complaint number DFAS-DE-SANB-97-044). The August 12, 1999

decision accepted one allegation for investigation and dismissed twelve

additional allegations for untimely EEO counselor contact and for failure

to cooperate.

After a review of the entire record, including the submissions of the

parties on appeal, the Commission finds that the appellant timely sought

EEO counseling regarding only three issues raised in the appellant's

February 4, 1999 complaint: (1) the appellant's receipt on September 20,

1998, of a letter from the Office of Personnel Management (OPM) denying

the appellant's disability retirement application; (2) the appellant's

receipt of the agency's October 8, 1998 directive to return to work or

provide medical documentation; and (3) the alleged on-going failure to

provide a requested reasonable accommodation: reassignment to a less

stressful position.

In addition to the issues identified above, the appellant's complaint

contained numerous allegations regarding a hostile work environment

to which the agency allegedly had subjected the appellant prior to her

taking leave from work beginning January 1998. However, the appellant

did not seek EEO counseling within 45 calendar days of the last day she

allegedly had been subjected to the hostile work environment. On appeal,

the appellant submits copies of medical documentation indicating that

she has had a mental impairment (major depression) for several years.

However, the documentation does not demonstrate that the appellant's

mental condition changed between the time period when she should

have sought EEO counseling regarding her hostile work environment

claim and the date when she sought counseling on November 2, 1998.

Given these circumstances, the Commission finds no basis for tolling

the time period for EEO counselor contact regarding the appellant's

hostile work environment claim. Accordingly, the Commission finds that

the appellant did not timely raise her hostile work environment claim.

For the same reason, the Commission finds no justification for tolling

the time limitation for EEO counseling regarding the appellant's leave

denial claims. Therefore, the Commission affirms the agency's dismissal

of all allegations pertaining to the alleged hostile work environment

and leave denials.

The Commission also finds that the issue identified above as issue 1 fails

to state a claim of employment discrimination. The appellant alleges

that OPM denied her disability retirement application based on false

information submitted to it by the agency. If so, the appellant must

contest the information submitted to OPM in the OPM process. She cannot

obtain a remedy from the EEO process for the agency's alleged wrongdoing

in the OPM process. Similarly, the appellant cannot obtain a remedy

from the EEO process for the agency's alleged wrongdoing with respect

to the appellant's workers' compensation claim or for its responses

to Congressional correspondence. Accordingly, the Commission affirms

the agency's dismissal of allegations pertaining to the appellant's

disability retirement application, her workers' compensation claim(s),

and Congressional correspondence.

The appellant also alleged in her February 4, 1999 complaint that the

agency granted only 8 hours of official time to prepare her September

1997 formal complaint when she had requested 40 hours as a reasonable

accommodation. The appellant further alleges that the agency required

her to "reaccomplish" her September 1997 formal complaint when she had

been diagnosed with major depression. Both of these allegations concern

the processing of the appellant's prior complaint. They do not state

claims of discrimination in employment. Accordingly, the Commission

also affirms the agency's dismissal of these allegations.

The appellant's concerns about the processing of her prior complaint

should have been raised in her appeal from the agency's dismissal of

the prior complaint. In any event, the Commission finds that the award

of eight hours of official time should have been sufficient for the

preparation of the appellant's September 4,1997 formal complaint even

though she had been diagnosed with major depression.

Finally, the Commission finds that the agency erred when it dismissed

a portion of the appellant's complaint for failure to cooperate.

The Commission has held that the regulation is applicable only in cases

where there is a clear record of delay or contumacious conduct by the

complainant. Anderson v. United States Postal Service, EEOC Request

No. 05940850 (February 24, 1995). No such conduct occurred in this case.

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of all of the appellant's complaint allegations except for

the following claims: the appellant's receipt of the agency's October

8, 1998 directive to return to work or provide medical documentation;

and the alleged on-going failure to provide a requested reasonable

accommodation, that is, reassignment to a less stressful position.

The Commission REVERSES the agency's implicit dismissal of the latter

claim; and remands the two claims to the agency for further processing.

ORDER

The agency is ORDERED to process the remanded claims in accordance with 29

C.F.R. �1614.108. The agency shall acknowledge to the appellant that it

has received the remanded claims 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:

11/08/1999

______________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations