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.