01982192
03-24-1999
Kathleen E. Meacham, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Kathleen E. Meacham v. Department of the Treasury
01982192
March 24, 1999
Kathleen E. Meacham, )
Appellant, )
)
v. ) Appeal No. 01982192
) Agency No. 98-3040
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The final agency decision was issued on December
19, 1997. The appeal was postmarked January 17, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner.
BACKGROUND
On April 24, 1997, appellant was notified that her tour of duty was
being changed effective April 28, 1997. Appellant initiated contact
with an EEO Counselor on August 28, 1997. On November 18, 1997,
appellant filed a formal EEO complaint wherein she alleged that she
had been discriminated against on the basis of her mental disability
(Adjustment Disorder with Mixed Anxiety and Depression) when on April 29,
1997, the agency refused to reasonably accommodate her in her request
to be returned to her previous tour of duty.
By letter dated June 15, 1997, appellant's psychologist explained that
a shift back to the previous tour would help relieve the stress on
appellant. The psychologist diagnosed her as having Adjustment Disorder
with Mixed Anxiety and Depression. The agency denied appellant's request
for a return to her previous tour of duty. By letter dated July 21,
1997, appellant again requested that she be returned to her previous
tour of duty.
In its final decision, the agency dismissed the complaint on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
The agency stated in its final decision that appellant was aware of the
45-day limitation period for contacting an EEO Counselor based on the
presence of EEO posters and appellant's attendance at a sexual harassment
training class. The agency determined that appellant should have had
a reasonable suspicion of discrimination as early as April 28, 1997,
the date the change of her tour of duty became effective.
On appeal, appellant contends that she was unable to contact an EEO
Counselor in a timely manner because she was too depressed. Appellant
references various symptoms of depression that she was suffering from
during the relevant period.
In response, the agency asserts that appellant had constructive knowledge
of the 45-day limitation period. According to the agency, notices were
posted on official bulletin boards in every office describing the EEO
process, including the time limits for filing complaints.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
In her complaint, appellant alleged that she was subjected to
discrimination based on her mental disability when the agency would
not reasonably accommodate her by restoring her to her previous tour
of duty. The initial denial of her request for reasonable accommodation
occurred on April 29, 1997, and subsequent requests were also denied.
According to the agency, appellant did not initiate contact with an
EEO Counselor until August 28, 1997. The Commission has held that a
failure to accommodate may constitute a recurring violation, that is,
a violation that recurs anew each day that an employer fails to provide
an accommodation. See Mitchell v. Department of Commerce, EEOC Appeal
No. 01934120 (March 4, 1994). Here, the agency's alleged violation
recurred each day that the agency failed to provide appellant with a
reasonable accommodation. We find that because appellant alleged an
ongoing denial of reasonable accommodation, her contact with an EEO
Counselor on August 28, 1997, was timely. Accordingly, the agency's
decision to dismiss appellant's complaint on the grounds of untimely
EEO contact was improper. The complaint is hereby REMANDED for further
processing in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint 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 (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:
March 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations