01A04475_r
04-10-2002
Cynthia R. Gonyea, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Cynthia R. Gonyea v. Department of the Treasury
01A04475
April 10, 2002
.
Cynthia R. Gonyea,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A04475
Agency No. 97-2129
Hearing No. 310-99-5456X
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 3, 2000, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. As part of her
complaint,<1> complainant alleged that she was subjected to an ongoing
pattern of harassment on the bases of sex, age, religion, disability,
and in reprisal for prior EEO activity. Complainant specifically
claimed that: in eighteen separate incidents in 1995, her supervisor
made demeaning statements and vulgar comments, told her she would not
be promoted if on leave, was required to do clerical duties and only
fraud cases, was required to watch a pornographic video, was required
to look for explosive fragments and body pieces, was denied leave, and
was required to work long hours and take a Fitness for Duty Examination
(claims 1-18).
Complainant also alleged that: she was required to come into work to
make a court appearance and look up something for her supervisor while
she was on leave (claim 19); a number of actions were taken by Department
of Labor employees in connection with her OWCP claim (claims 20-23);
and, while she was on disability leave in 1996 and 1997, her personal
mail was withheld and opened by the agency (claim 24).
By letter dated June 19, 1997, the agency accepted the above-stated
claims for investigation, and at the conclusion of the investigation
complainant requested a hearing before an EEOC Administrative Judge
(AJ). After three pre-hearing conferences, two agency Motions to Dismiss
and complainant's responses, the AJ issued an April 26, 2000 decision
dismissing the complaint. The AJ's decision specifically dismissed
claims 1 through 18 for untimely EEO contact, and claims 19 through 24
for failure to state a claim, pursuant to 29 C.F.R. �� 1614.107(a)(1) and
(2). On July 3, 2000, the agency issued a final order fully implementing
the AJ's decision, and complainant filed the instant appeal.<2>
Upon review, we find that complainant's claims were properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) and (2). First, for claims
1 through 18, the record indicates that all of the events asserted
by complainant occurred sometime in 1995. The EEO Counselor's report
indicates that complainant contacted the agency's EEO office on November
20, 1996, which was after the forty-five day limitation period had
expired. Although complainant apparently asserted to the EEO Counselor
that an attempt at EEO contact had previously been made, complainant has
not asserted that claims 1 through 18 occurred within forty-five days of
her purported attempt at contacting an EEO Counselor. Moreover, despite
complainant's contentions that her circumstances warrant an extension of
the time limit, she has failed to present sufficient evidence to support
her claims that she was incapacitated or that her untimely claims were
related to any claim made within the time limitation.
We also find that claims 19 through 24 were properly dismissed for failure
to state a claim. Complainant's claims 20 through 23 concern actions
taken by Department of Labor employees in connection to her OWCP claim.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998).
The proper forum for complainant to have raised her challenges to
actions that occurred related to the OWCP claim process, was within
that process itself. It is inappropriate to now attempt to use the
EEO process to collaterally attack actions related to her OWCP claim.
Finally, concerning claims 19 and 24, we find that complainant has failed
to show how she was aggrieved by the individual claims, or that the
actions taken together subjected her to harassment that was sufficiently
severe or pervasive to alter the conditions of her employment.
Accordingly, the agency's final decision dismissing complainant's claims
is AFFIRMED.
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 (S0900)
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. 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 (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
April 10, 2002
__________________
Date
1 A portion of complainant's complaint
concerning sixteen incidents occurring in 1988 and a 1994 weapons
training incident was separately dismissed and appealed to the Commission.
The Commission affirmed the agency's decision to dismiss the seventeen
claims for untimely EEO Counselor contact. See Gonyea v. Department of
the Treasury, EEOC Appeal No. 01976351 (June 12, 1998).
2Although complainant initially appealed the AJ's decision on May 17,
2000, complainant amended her appeal to address the agency's final action
by letter dated July 19, 2000.