Lois Roberts, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 1, 2000
01981196 (E.E.O.C. Sep. 1, 2000)

01981196

09-01-2000

Lois Roberts, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Lois Roberts v. Department of the Navy

01981196

September 1, 2000

.

Lois Roberts,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01981196

Agency No. DON (MC) 97-00027-C04

DECISION

On February 12, 1997, complainant filed a timely appeal with this

Commission from an agency's decision pertaining to 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts

the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405)

Complainant contacted the EEO office on September 26, 1996,

regarding claims of discrimination based on mental disability and sex.

Specifically, complainant claimed that the agency intentionally harassed

her; subjected her to an extremely hostile work environment; and denied

her career advancement causing her injury and forcing her to retire

earlier than she expected. According to complainant, the specific

incidents giving rise to her claim include:

She was given an excessive amount of work after returning from medical

leave with the understanding that she was on light duty;

Her immediate supervisor harassed her and admonished her in front of

co-workers;

Her immediate supervisor was unduly harsh in making sure in no way

would he accommodate any alternate work schedule;

Her immediate supervisor continually played childish games with her,

such as refusing to answer direct questions when asked;

Her immediate supervisor made her work environment very stressful by

giving her no time frames or deadlines on work but asking for daily

status reports on the same items;

Her immediate supervisor made her do things intentionally, knowing

she should not be doing them because of her medical condition, such as

going to the vault and pulling 14 OPFs alone;

After being put on Administrative leave, her immediate supervisor told

her when she returned she may not even be able to do a GS-9 level's work.

Additionally, when she was out of work, the Agency continued to harass

her about her administrative leave requests;

She was given no option but to support management decisions she knew

were wrong in order to protect her job;

She had numerous errors in her pay, which no one was eager to fix;

Authority figures insinuated that she was telling falsehoods concerning

the severity of her health;

She was told she should get used to accepting a �D� instead of an �A�;

She had been given permission to use the computer for her disability

claim and then her immediate supervisor, who was extremely hostile,

threatened further action if she did it again;

She was not allowed to work alone in the building due to her health,

although other employees were allowed to;

Other employees were allowed to use the computer for personal purposes;

Her immediate supervisor became very angry with her on more than one

occasion;

She was threatened if she did not bring in a doctor's report, she would

not be allowed back in the building to work; and,

She was being harassed about making too many errors although not being

made aware of them.

Informal efforts to resolve her concerns were unsuccessful. Subsequently,

on January 8, 1997, complainant filed a formal complaint.

On February 7, 1997, the agency issued a decision dismissing the complaint

for untimely Counselor contact. The agency determined that complainant

initiated paperwork for disability retirement on March 26, 1996.

The agency further determined that complainant's retirement request

was approved on July 17, 1996, and became effective on July 26, 1996.

Therefore, according to the agency, since all of complainant's incidents

occurred while she was employed, none could have taken place after

July 26, 1996. Consequently, the agency determined that complainant's

September 26, 1996 Counselor contact was more than forty-five days after

the most recent incident of alleged discrimination.

Complainant raises no new contentions on appeal.

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

referred to as 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 Howard

v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).

Thus, the time limitation is not triggered until a complainant reasonably

suspects discrimination, but before all the facts that support a charge

of discrimination have become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Here, complainant has not provided specific dates with respect to the

thirteen incidents comprising her claim of discrimination. Instead,

she states in her formal complaint that the alleged events are �ongoing

and continuous.� We agree with the agency's conclusion, however,

that the most recent event occurred no later than July 26, 1996,

the date of complainant's retirement. The record contains copies of

complainant's �Application for Immediate Retirement� dated May 1, 1996;

a letter from the Office of Personnel Management dated July 17, 1996,

approving complainant's application; and a �Notification of Personnel

Action� implementing complainant's retirement disability in July 1996.

Therefore, we find that although complainant contends the events are

ongoing, since the incidents occurred in the workplace and affected

complainant's employment, the most recent event had to have occurred prior

to her July 26, 1996 retirement, thereby making her September 26, 1996

contact beyond the forty-five day time limitation. Complainant has not

provided any reasons on appeal for tolling or extending the time limit.

Accordingly, the agency's decision dismissing the complaint for untimely

EEO Counselor contact was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 1, 2000

__________________

Date

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

______________________________

1On 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.