Judith C. Rugg, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01981548 (E.E.O.C. Feb. 15, 2000)

01981548

02-15-2000

Judith C. Rugg, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Judith C. Rugg v. Department of the Army

01981548

February 15, 2000

Judith C. Rugg, )

Complainant, )

)

v. ) Appeal No. 01981548

) Agency No. AUFSPI9706H0200

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's October 14, 1997 decision

dismissing Complainant's complaint on the bases of untimely EEO counselor

contact and failure to bring the issues to the attention of the EEO

counselor, is not proper, in part, pursuant to the provisions of 29

C.F.R.�1614.107(a)(2).<1>

The record shows that Complainant sought EEO counseling on May 7,

1997, alleging that she had been continuously discriminated against

on the basis of physical disability (severely sight impaired) by her

supervisor since January 1995. Complainant alleged that while being

subjected to an office environment of isolation, her supervisor had

denied her reasonable accommodation for her disability, provided little

or no opportunity for training, and denied a non-competitive promotion

from GS-9 to GS-11. Complainant filed a formal complaint alleging that

she had been discriminated against on the basis of physical disability

regarding the matters identified in the following claims:

(1) failure to promote to GS-11;

(2) accurate job description;

(3) IDP;

(4) reasonable accommodation; and,

(5) mandatory medical exams

In her formal complaint, Complainant stated that said complaint was not

"[her] first attempt to resolve the ongoing situation". She further

stated that in June 1995, and early November 1996, the subject of

discriminatory treatment was "brought up during a meeting with the

Human Resources Office".

The agency issued a final decision dismissing claims (1), (2) and (5)

on the grounds that Complainant had failed to bring said claims to the

attention of the EEO counselor. Claims (3), (4) and (5) were dismissed

on the grounds of untimely EEO counselor contact.

Regarding allegation, (1) we find that the agency improperly dismissed

this allegation on the basis that it had not been brought to the attention

of the EEO counselor. The record shows that this allegation was in fact

raised by Complainant during EEO counseling. Claims (2) and (5) were

not raised during EEO counseling and, therefore, their dismissal on the

grounds of Complainant's failure to raise them with the EEO counselor,

was proper. Because allegation (5) was properly dismissed on this basis,

we will not address the agency's alternate grounds for dismissal of

allegation (5) (untimely EEO counselor contact).

Concerning the dismissal of claims (3) and (4) on the grounds of untimely

EEO counselor contact, we find that they were improperly dismissed.

The record shows that Complainant contacted an EEO counselor on May 8,

1997. However, Complainant claims, and the agency does not contradict,

that in June 1995, and early November 1996, she raised the issue of her

discriminatory treatment with the Human Resources Office. The Commission

has consistently held that contact with an agency official who was not

an EEO counselor, but who was logically connected with the EEO process,

is sufficient to constitute EEO contact, notwithstanding the fact that

a complainant was aware of the EEO process. Jones v. Department of the

Army, EEOC Request No. 05891021 (January 30, 1990); Hernandez v. USPS,

EEOC Appeal No. 01972231 (March 31, 1998). Given the facts of this case,

we find Complainant's contacts in 1998 and 1996 with a Human Resources

manager constitute sufficient EEO contact. Moreover, regarding claim (4),

the Commission has held that failure to provide a reasonable accommodation

may constitute a recurring violation, that is, a violation that recurs

each day that the agency failed to provide Complainant with a reasonable

accommodation. See Mitchell v. Department of Commerce, EEOC Appeal

No. 01934120 (March 4, 1994). We find that Complainant's claim involving

the denial of reasonable accommodation is in the nature of a recurring

violation, and that her EEO counselor contact was therefore timely with

regard to this claim. We find that claims (3) and (4) were improperly

dismissed by the agency on the grounds of untimely EEO counselor contact.

Accordingly, the dismissal of claims (1), (3) and (4) is hereby REVERSED.

Claims (1), (3) and (4) are REMANDED for further processing in accordance

with this decision and applicable regulations. The dismissal of claims

(2) and (5) is hereby AFFIRMED.

ORDER (E1199)

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

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims 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 an

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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (T1199)

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 (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:

February 15, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ ___________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all Federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at WWW.EEOC.GOV.