01992531
11-05-1999
Edna M. Doak, Appellant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Edna M. Doak v. Federal Deposit Insurance Corporation
01992531
November 5, 1999
Edna M. Doak, )
Appellant, )
)
v. ) Appeal No. 01992531
) Agency No. 94-37
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance )
Corporation, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated November 12, 1998, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (d). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
In a prior decision on this complaint, the Commission found that the
agency properly dismissed allegations B, C, F, and G because the appellant
had raised the allegations in a previously filed grievance, dated March
17, 1994. However, the Commission remanded the complaint because the
agency failed to address allegations A, D, and E when dismissing the
appellant's complaint. Doak v. Federal Deposit Insurance Corporation,
EEOC Appeal No. 01975817 (October 9, 1998).
The agency then issued a new final agency decision, wherein it again
dismissed allegations A, D, and E. The decision found that allegation
A was inextricably intertwined with the March 17, 1994 grievance.
The decision found that allegations D and E failed to state claims.
The Commission finds that the agency erred when it dismissed allegation A.
Allegation A concerned a letter of warning issued on February 1, 1994.
In contrast, the grievance concerned a March 2, 1994 final determination
which sustained the imposition of a l0- day suspension. The grievance
described the suspension as the latest punitive action in a series of
actions taken against the appellant. However, the grievance did not
challenge the imposition of the letter of warning or seek to have it
retracted and expunged. Accordingly, the Commission finds that the
appellant did not challenge the letter of warning in the grievance.
Therefore, the Commission reverses the agency's dismissal of allegation
A.
The Commission finds that the agency also erred when it dismissed
allegation D. Allegation D alleges that the appellant's supervisor
attempted to prevent the appellant from seeing her psychiatrist by
threatening to record her as absent without approved leave (AWOL) on
February 4, 1994. On February 1, 1994, the same supervisor had issued the
letter of warning regarding the appellant's leave usage; the supervisor
also had charged the appellant as being AWOL for 4 hours on February 2,
1994, and as being AWOL for 5 hours on February 3, 1994. If allegation
D were to be proven true, then the supervisor had placed the appellant
in the dilemma of either forgoing treatment for her alleged disability
or, in all probability, to incur another charge of AWOL. Therefore,
the Commission finds that allegation D states a claim of a denial of a
requested accommodation, even though it appears that the supervisor later
chose not to charge the appellant with AWOL for seeing the psychiatrist.
A remedy for a proven denial of a reasonable accommodation would be, among
other things, to require the granting of the accommodation in the future.
The Commission finds that the agency further erred when it dismissed
allegation E. Allegation E concerned an instance where the supervisor
denied the appellant's request to use February 7, 1994, in lieu of her
Compressed Work Schedule (CWS) day, while permitting a male employee to
change his CWS day. The Commission finds that this allegation states
a claim of disparate treatment in the terms and conditions of the
appellant's employment.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
dismissal of allegations A, D, and E and REMANDS the appellant's June 30,
1994 complaint for continuation of processing where the processing had
ceased.
ORDER
The agency is ORDERED to issue to appellant a copy of the investigative
file and also shall notify appellant of the appropriate rights within
thirty (30) 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(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 (R0993)
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. 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 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 (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