Linda D. Edwards, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01985837_r (E.E.O.C. Sep. 9, 1999)

01985837_r

09-09-1999

Linda D. Edwards, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Linda D. Edwards, )

Appellant, )

)

v. ) Appeal No. 01985837

) Agency No. DOT-6-98-6090

)

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

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 Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. and Section 501 of the Rehabilitation Act of

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

on June 23, 1998. The appeal was postmarked July 22, 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.

The record reflects that appellant initiated EEO Counselor with regard

to the matters raised in the instant complaint, on April 9, 1998.

The record further reflects that appellant filed a formal complaint on

April 27, 1998 (Agency No. DOT 6-98-6069).

On May 12, 1998, appellant filed a formal complaint that is the subject

of the instant appeal, alleging that she was the victim of unlawful

employment discrimination on the bases of race, color, sex, disability,

and reprisal.

By letter dated June 23, 1998, the agency informed appellant that the

following issues were accepted for investigation in the complaint filed

on April 27, 1998 (Agency No. DOT 6-98-6069):

The FAA discriminated against you because of [race, color, sex, disability

and reprisal] when due to an injury you were unable to climb the stairs

at the Bakersfield ATCT/Tracon to perform your duties. Although you

were denied a reasonable accommodation, you were offered an alternative

position at the High Desert Tracon. Because you were denied reasonable

accommodations at both facilities, you were terminated from the FAA on

March 1, 1998.

On June 23, 1998, the agency also issued a final decision on the

instant complaint. Therein, the agency determined that the instant

complaint was comprised of three allegations, that were identified in

the following fashion:

1. On November 26, 1995, your pay was reduced when you were reassigned

to the Bakersfield ATCT/Tracon.

2. In 1996, the Bakersfield ATCT/Tracon did not accommodate your

disability.

3. On March 1, 1998, you were terminated.

The agency dismissed allegations 1 and 2 for failure to initiate contact

with an EEO Counselor in timely fashion. The agency dismissed allegation

3 on the grounds that appellant raised the issue of her termination

from agency employment in a previously filed EEO complaint (Agency

No. DOT-6-98-6069).

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 forty-five (45) days of the effective date of

the action. The Commission has adopted a "reasonable suspicion" standard

(as opposed to a "supportive facts" standard) to determine when the

forty-five (45) day limitation period is triggered. See Ball v. USPS,

EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

Regarding allegation 1, appellant's initial EEO Counselor contact in

April 1998, was more than forty-five days after the reduction in pay

purportedly occurred, in November 1995. Appellant failed to present

adequate justification pursuant to 29 C.F.R. �1614.105(a)(2), for

extending the limitation period beyond forty-five days. Accordingly, the

agency's decision to dismiss allegation 1 for failure to initiate contact

with an EEO Counselor in a timely fashion was proper and is AFFIRMED.

The Commission notes that although the agency dismissed allegation 2 on

the grounds of untimely EEO Counselor contact, this allegation, as well

as allegation 3, are properly analyzed in terms of whether appellant

raised the matters contained therein in a previously filed EEO complaint.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that a complaint or a

portion of a complaint that states the same claim that is pending before

or has been decided by the agency or Commission.

In a letter dated June 23, 1998, the agency informed appellant that

the following allegations raised in a complaint filed on April 27, 1998

(Agency No. DOT-6-98-6069) were accepted for investigation: appellant

was denied reasonable accommodation at the agency's Bakersfield and

High Desert facilities; and she was thereafter terminated from agency

employment. In allegations 2 and 3 of the instant complaint, appellant

alleged that she was denied reasonable accommodation at the agency's

Bakersfield facility and was terminated from agency employment on March

1, 1998. We find that the matters raised in allegations 2 and 3 were

raised in a previously filed complaint (Agency No. DOT-6-98-6069).

Accordingly, the agency's decision to dismiss allegations 2 and 3 was

proper for the reasons set forth herein and is AFFIRMED.

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 (S0993)

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:

Sept. 9, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations