01993578
03-16-2001
Patricia J. Ashburn v. Department of the Treasury 01993578 March 16, 2001 . Patricia J. Ashburn, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Patricia J. Ashburn v. Department of the Treasury
01993578
March 16, 2001
.
Patricia J. Ashburn,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01993578
Agency No. 98-4090
DECISION
Upon review, the Commission finds that the agency's decision dated
February 24, 1999, dismissing claim (1) in complainant's complaint
for failure to state a claim is proper but dismissing claims (2) and
(3) for failure to state a claim is improper pursuant to 29 C.F.R. �
1614.107(a)(1). In her complaint, complainant alleged that: (1) her
supervisor made false statements on her Claim for Continuing Compensation
on Account of Disability (Form CA-8); (2) the supervisor failed to give
her a midyear review during fiscal year 1997; and (3) the supervisor
failed to advise her of leave buy back request in or around April and
August 1997.<1>
With regard to claim (1), the Commission finds that it amounts to a
collateral attack on an Office of Workers' Compensation Programs (OWCP)
decision. Where a complainant claims that the agency discriminated in a
manner pertaining to the merits of the workers' compensation claim, for
example, by submitting paperwork containing allegedly false information,
as here, then the subject matter does not state a claim within the
purview of the EEO process. See Pirozzi v. Department of the Navy,
EEOC Request No. 05970146 (October 23, 1998).
With regard to claim (2), complainant, on appeal, contends that as a
result of the alleged action, she, subsequently, received her annual
performance appraisal on April 7, 1998, containing negative comments
concerning her work performance. It is noted that a midyear review does
not in and of itself state a claim. See Jackson v. Central Intelligence
Agency, EEOC Request No. 05931177 (June 23, 1994). However, in the
instant case, since the alleged midyear performance caused complainant
to receive the allegedly discriminatory annual performance appraisal,
the Commission finds that the subject matter is merged with the ultimate
annual performance appraisal, which states a claim.
With regard to claim (3), the Commission finds that it, together with
complainant's previous harassment claim raised in Agency No. 97-4288,
states a claim. The record indicates that complainant previously filed a
complaint, Agency No. 97-4288, alleging harassment when her supervisor,
the same responsible official in the instant complaint, improperly made
negative remarks, returned her work product for revision, and denied
credit hours and administrative leave which occurred in June and July
1997. Upon complainant's appeal from the agency's partial dismissal, the
Commission, in EEOC Appeal No. 01980947 (November 10, 1998) found that
the dismissed claims stated a claim, reversed the agency's decision,
and remanded the claims back to the agency for further processing.
The Commission finds that claim (3) in the instant matter, concerning the
supervisor's failure to advise complainant of leave buy back request,
together with the above claims of the previous complaint (97-4288),
which are pending before an Administrative Judge for a hearing, state
a claim of harassment. The Commission finds that it is appropriate
to have the remaining claims of the instant matter consolidated with
97-4288 and we shall remand claims (2) and (3) so that the agency may
transmit the complaint to the AJ for such consolidation.
Accordingly, the agency's decision dismissing claim (1) is hereby
AFFIRMED. The agency's decision dismissing claims (2) and (3) is hereby
REVERSED. Claims (2) and (3) are REMANDED for further processing in
accordance with the Order below.
ORDER
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall notify the AJ, who is presently assigned to
complainant's previous complaint (97-4288), in the EEOC Phoenix District
Office, of the remand of claims (2) and (3) of the instant complaint and
request that the AJ consolidate those claims with Agency No. 97-4288 for
joint processing in accordance with 29 C.F.R. � 1614.606. The agency,
within fifteen (15) calendar days of the date this decision becomes
final, shall submit a copy of the complaint file to the AJ. A copy of
the agency's letter to the AJ and a copy of the agency's cover letter
transmitting the complaint file to the AJ must be sent to complainant
and the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 16, 2001
__________________
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
______________________________
1The record indicates that on March 31, 1998, the agency previously
issued its decision dismissing three claims in the instant complaint,
other than claims (1) through (3) addressed herein, but complainant did
not appeal that decision to the Commission.