John F. Conlon, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency

Equal Employment Opportunity CommissionSep 14, 1999
01982609 (E.E.O.C. Sep. 14, 1999)

01982609

09-14-1999

John F. Conlon, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency


John F. Conlon v. Department of the Treasury

01982609

September 14, 1999

John F. Conlon, )

Appellant, )

) Appeal No. 01982609

v. ) Agency No. 97-2299

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq., the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. �621 et seq. and �501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was

dated February 3, 1998, and received by appellant on February 5, 1998.

The appeal was postmarked on February 13, 1998. Accordingly, the appeal

is timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance

with EEOC Order No. 960, as amended.

ISSUES PRESENTED

The issues on appeal are whether the agency properly dismissed several

allegations of appellant's complaint for untimely contact with an

EEO Counselor, and whether the agency properly dismissed a basis of

discrimination.

BACKGROUND

Appellant filed a formal complaint on August 26, 1997, alleging

discrimination on the bases of sex (male), age (DOB 7/23/48),

physical disability (typing), mental disability (ADHD) and reprisal

(whistle-blower activity). The agency characterized his complaint to

include the following seven allegations:

1) on or about May 12, 1997, he was issued an annual appraisal that

reflected a performance rating of unacceptable;

2) in or about March 1997, management did not adopt a data base that he

had developed;

3) sometime between April 22, 1997 and June 6, 1997, his supervisor gave

him orders that contradicted past practices or policies and denied his

request for a copy of the guidelines;

4) he was accused of insubordination when he tried to point out

deficiencies in work practices;

5) he was forced to be a participant in "waste, fraud and abuse;"

6) his supervisor made harassing statements to him in front of his

co-workers, and

7) his co-workers harassed him by such actions as ignoring him and making

negative remarks.

In its final agency decision, the agency accepted allegations 1 and 3

for processing and dismissed allegations 2 and 4 through 7. The agency

found that appellant had been untimely in his EEO Counselor contact

for the dismissed allegations. The agency considered appellant's first

contact with the EEO Counselor to be on June 6, 1997. The agency also

stated that, despite appellant's argument that he was untimely because of

his mental state, he had not shown that he was mentally or physically

incapacitated to the point that he was incapable of contacting an

EEO Counselor within the requisite time limits. It also found that he

had not established a continuing violation. The agency qualified its

dismissal of allegations 4 through 7 by stating that it would accept

for processing any incidents covered by these allegations that had

occurred during the 45 days preceding appellant's EEO Counselor contact.

The agency also dismissed appellant's basis of retaliation for failure

to state a claim because appellant had failed to show that he had engaged

in any prior protected EEO activity and that whistle-blower activity was

not a protected activity under the statutes covered by the Commission.

This appeal followed.

On appeal, appellant argued that he had alleged that the agency had

engaged in a continuous and on-going series of events that created a

hostile work environment. He asserted that his first EEO contact was

on May 21, 1997. Appellant claimed, as an explanation of his potential

untimeliness, to have initially sought the help of his next level manager,

"the natural progression when an employee feels he is being discriminated

against." Appellant also submitted statements from two of his doctors

that attested to his mental state (severe stress disorder, depression

and anxiety). Both doctors began treating appellant after the alleged

discriminatory events occurred and after appellant had first contacted

the EEO Counselor (June 20, 1997 and July 10, 1997).

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or within 45 days

of the effective date of the personnel action.

The Courts have held that a complainant's mental condition may justify

tolling the limitation period, if the impairment renders the complainant

incompetent and incapable of handling his own affairs or comprehending

his legal rights. Speiser v. Department of Health & Human Services,

670 F. Supp 380, (D.D.C. 1986), aff'd without opinion, 818 F.2d 95

(D.C. Cir. 1987). We have consistently held, in cases involving physical

or mental health difficulties, that an extension is warranted only where

an individual is so incapacitated by his condition that he is unable

to meet the regulatory time limits. See Davis v. U.S. Postal Service,

EEOC Request No. 05980475 (August 6, 1998); Crear v. U.S. Postal

Service, EEOC Request No. 05920700 (October 29, 1992); Weinberger

v. Department of the Army, EEOC Request No. 05920040 (February 21,

1992); Hickman v. Department of the Navy, EEOC Request No. 05910707

(September 30, 1991); Johnson v. Department of Health and Human Services,

EEOC Request No. 05900873 (October 5, 1990); and Zelmer v. U.S. Postal

Service, EEOC Request No. 05890164 (March 8, 1989). Merely suffering

from impaired judgement is not sufficient to toll the limitation period.

Thompson v. Department of Agriculture, EEOC Request No. 05971092 (July 3,

1997), Miller v. Department of the Air Force, EEOC Request No. 05950888

(December 2, 1996).

In this case, appellant submitted statements from his physicians that

he was suffering from anxiety, stress and depression. In each of the

submitted statements, it was specified that the physician began treating

appellant on a date after his initial EEO contact. Appellant did not

submit any evidence to show what his mental state was during the time

period between the last discriminatory event alleged and his initial

EEO contact. Therefore, the record contains insufficient evidence to

support a finding that he was incapable of handling his own affairs a

that time and that the 45 day limitation period should have been tolled.

On appeal, appellant stated that he had attempted to address some of his

work related concerns by seeking the help of his next level manager.

When an employee suspects discrimination is at the root of an adverse

action, he is required to seek counseling from an EEO Counselor in

a timely fashion. The Commission has held that informal attempts to

resolve a problem do not toll the time limit for seeking EEO counseling.

Delora E. Jones v. Department of Justice, EEOC Request No. 05930909

(March 17, 1994).

Appellant's overall claim is that the agency created a hostile work

environment through a series of continuous and ongoing events. The agency

repeatedly tried to get appellant and his attorney to specify the dates

and exact incidents that would illustrate how management engaged in

this discriminatory course of conduct. The record reveals that despite

these requests, appellant merely reiterated his generalized statements

regarding each allegation. The letter sent to appellant accepting his

complaint for processing broadly framed the issue to be investigated as

"whether [appellant] was subjected to a hostile work environment or

otherwise treated disparately during the period of April 22 through

June 6, 1997." The agency accepted for processing any instances of

allegations 4 through 7 that occurred within the 45 day period preceding

the initial EEO contact, technically not dismissing occurrences of those

allegations during that time frame. Although we find that allegation 2

and any instances of discrimination encompassed by allegations 4 through

7 that occurred prior to the 45 day time period were properly dismissed

as untimely, we note that this finding does not relieve the agency of

its responsibility to thoroughly investigate all the circumstances that

may be relevant to appellant's overall claim of discrimination. See EEOC

Management Directive (MD) 110 (5-4) (October 22, 1992). This means that,

to the extent they are probative of appellant's overall hostile work

environment claim, the allegations must be investigated as background

evidence. See Silva v. U.S. Postal Service, EEOC Request No. 05960115

(June 20, 1996).

The Commission notes that the agency characterized appellant's first

EEO contact as having occurred on June 6, 1997, while appellant argued

that it was actually on May 21, 1997. The Counselor's report noted

that appellant first sought EEO counseling on May 21, 1997, but that

the Counselor was out of the office until June 6, and did not talk to

appellant until that date. The Commission has consistently held that a

complainant satisfies the criterion of Counselor contact by contacting

an agency official logically connected with the EEO process, and by

exhibiting an intent to begin the EEO process. Alcocer v. Department

of the Treasury, EEOC Request No. 05960833 (March 5, 1998); Allen

v. U.S. Postal Service, EEOC Request No. 05950933 (July 8, 1996); Floyd

v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989).

By contacting the EEO office and requesting counseling on May 21, 1997,

appellant manifested the requisite intent to begin the EEO process

and his first contact is deemed to be on May 21, 1997 for purposes of

calculating the preceding 45 day period. Therefore, when the agency

investigates any incidents encompassed by allegations 4 through 7,

it should examine the period of April 7, 1997 through May 21, 1997.

Appellant alleged that the discrimination was due in part to reprisal

based on his complaints of wrong doing by management. Federal employees

are protected from retaliation by their employing agency when they

have opposed an unlawful discriminatory practice or participated in

any stage of a proceeding under any of the Federal anti-employment

discrimination statutes enforced by the Commission. EEOC Regulation

29 C.F.R. �1614.101(b). In order to claim reprisal as a basis of

discrimination, an appellant must show that he opposed discriminatory

practices or participated in EEO proceedings. It is well settled that

engaging in whistle-blowing is not protected EEO activity. See Reavill

v. Department of the Navy, EEOC Appeal No. 05950174 (July 19, 1996).

In this case, appellant has not submitted any evidence that he had

previously engaged in EEO activity, therefore, the agency properly

dismissed this basis of discrimination from appellant's complaint.

Accordingly, the decision of the agency regarding its dismissal of

retaliation as a basis of discrimination was proper and is AFFIRMED.

The decision of the agency regarding allegations 2 and 4 through 7 is

MODIFIED and REMANDED for further processing in accordance with the

order below.

ORDER (E1092)

Any instances of allegations 4 through 7 which occurred in the 45 day

time period preceding appellant's EEO Counselor contact on May 21,

1997 shall be accepted for processing. Allegation 2 and any instances

of allegations 4 through 7 that occurred preceding April 7, 1997 shall

be considered background evidence, to the extent that such evidence is

relevant to appellant's hostile work environment claim.

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(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 (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:

September 14, 1999

______________ ______________________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations