Judith A. Johnson, Complainant,v.Ed Schafer, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 13, 2009
0120082017 (E.E.O.C. Mar. 13, 2009)

0120082017

03-13-2009

Judith A. Johnson, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.


Judith A. Johnson,

Complainant,

v.

Ed Schafer,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120082017

Agency No. FS200600062

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated February 19, 2008, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of sex (female), disability (knee injury),

age (47 years old at the time of the first incident and 64 years and older

at the time of the remaining incidents), and reprisal for prior protected

EEO activity under a statute that was unspecified in the record when:

1. in 1987 complainant was not offered a suitable job after an

on-the-job-injury and vocational rehabilitation;

2. on or about April 5, 2004, a job offer was sent to complainant pursuant

to a suitability determination from the Department of Labor's (DOL) Office

of Worker's Compensation Programs (OWCP), which was withdrawn on or about

June 1, 2004, when the OWCP determined that the offer was not suitable;

3. on or about January 24, 2005, a modified job offer was sent to

complainant, which was placed on hold due to a question by the OWCP as

to its suitability;

4. on May 22, 2005, the job offer was again sent to complainant which

she declined on June 22, 2005, due to questions she had regarding

suitability;

5. by letter dated August 24, 2005, complainant was advised that she had

fifteen (15) days to accept the job offer or her OWCP benefits would be

terminated;

6. by letter dated September 9, 2005, complainant accepted a job offer

and again questioned whether she was suitable for the position due to

her age and physical condition;

7. on September 19, 2005, complainant reported for work, had a fall,

and had to be removed by ambulance;

8. on September 22, 2005, the OWCP terminated complainant's OWCP benefits

effective September 16, 2005;

9. on October 26, 2005, the OWCP rescinded the September 22, 2005

termination of OWCP benefits, and the job suitability decision, and

reinstated the benefits effective September 19, 2005;

10. on December 2, 2005, the agency terminated complainant's employment.

The agency dismissed the claims for untimely EEO counselor contact

and further found that the claims were a collateral attack on the OWCP

process. Specifically, the agency noted that complainant did not contact

an EEO counselor until December 23, 2005, which the agency found to be

beyond the regulatory limit. Furthermore, the agency found, it was the

OWCP and not the agency who determined whether or not complainant would

be returned to employment and therefore the proper forum for her to raise

her allegations was in the OWCP process, not the EEO process. On appeal,

complainant argues that the agency has mischaracterized her complaint.

Following a review of the record we find that the agency correctly

dismissed claims 1 through 9, inclusive. The alleged discriminatory

events occurred in 1987 and from April 2004 to October 26, 2005, but

complainant did not initiate contact with an EEO Counselor until December

23, 2005, which is beyond the forty-five (45) day limitation period.

On appeal, complainant has presented no persuasive arguments or evidence

warranting an extension of the time limit for initiating EEO Counselor

contact. However, as regards claim 10 we find that complainant's EEO

counselor contact was timely.

The agency further found that complainant's allegations constituted a

collateral attack against the OWCP process. We find, however, that

claim 10 does not constitute a collateral attack against the OWCP

process because the removal action was conducted by the agency, not

the OWCP. While the agency asserts in its dismissal decision that the

termination decision was made because OWCP rescinded its suitability

determination, this addresses the merits of complainant's allegations

without a proper investigation as required by the regulations and

is irrelevant to the procedural issue of whether she has stated a

justiciable claim. See Osborne v. Department of the Treasury, EEOC Request

No. 05960111 (July 19, 1996); Lee v. United States Postal Service,

EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United

States Postal Service, EEOC Request No. 05910642 (August 15, 1991).

We therefore find that the agency's dismissal of claim 10 was improper.

As regards complainant's arguments on appeal, complainant states that

the issues should have been characterized as follows:

1. Complainant suffered long term mental pain and suffering as a victim of

prejudice and personal reprisals by staff and contractors of the Plumas

National Forest Human Resources Department (PNF-HR). From 2003 thru

[sic] 2005, the PNF-HR attacked the personal character of the Complainant

through spreading lies and slander within their own department, to

other departments and agencies of the United States Federal Government,

and to others outside the U.S. Government, including the staff of the

Complainant's private physician;

2. Complainant experienced further mental pain and suffering when the

HRPNF discriminated based on age and gender through its vicious and

aggressive efforts during 2003-2005 to re-hire the Complainant, after

ignoring every effort by the Complainant and OWCP for her re-employment

between 1980 and 2002;

3. The Complainant suffered immediate and long term physical injuries, or

re-injuries, from fainting and falling on September 19, 2005, the first

day of re-employment by the PNF, due to stress caused by the atmosphere

of lies and slander created by the HR-PNF, in combination with the

failure of the HR-PNF to address reasonable and lawful requests of the

Complainant to evaluate her complete medical condition and vocational

abilities prior to re-employment

We note however that even assuming arguendo that the claims are

characterized as complainant describes, complainant's EEO counselor

contact was untimely since all the events occurred more than 45 days

before her counselor contact on December 23, 2005. Furthermore, much

of complainant's claims seem to allege that agency officials defamed her

and EEO regulations do not provide a cause of action for defamation.

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed in part and reversed in part and claim 10 is

remanded to the agency for processing in accordance with the Order set

forth below.

ORDER (E0408)

The agency is ordered to process the remanded claim (claim 10) in

accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to

the complainant that it has received the remanded claim within thirty (30)

calendar days of the date this decision becomes final. The agency shall

issue to complainant a copy of the investigative file and also shall

notify complainant 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 complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant 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 (K0408)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant 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. �� 1614.407 and 1614.408.

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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (T0408)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

March 13, 2009

__________________

Date

2

0120082017

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120082017