02970023
10-03-2000
Patti Anne Reese, Complainant, Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Patti Anne Reese v. Department of Agriculture
02970023
October 3, 2000
Patti Anne Reese, )
Complainant, )
)
) Appeal No. 02970023
) Agency No. R5 Case #UG-97-01
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
INTRODUCTION
On August 30, 1997, Patti Anne Reese (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final (third-step) agency decision dated July 21, 1997,
concerning grievances she filed against the Department of Agriculture
(the agency).<1> In her grievances, complainant alleged that the
agency discriminated against her in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The Commission hereby accepts the appeal in accordance with 29 C.F.R. �
1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency official properly determined
that complainant had failed to prove that the agency had discriminated
against her based on sex (pregnancy).
BACKGROUND
Complainant filed six grievances which were consolidated for decision by
the agency into one opinion. Complainant filed her grievances on October
2, 1996, October 11, 1996, October 23, 1996 and November 11, 1996. Each
grievance repeated essentially the same set of incidents and allegations.
Specifically, complainant alleged that:
1) in May 1996, she was denied the ability to work under a work-at-home
arrangement while she was home on medical leave due to her pregnancy;
2) in May 1996, management demanded that she work 7.5 hours while she
was home on medical leave, and she was not allowed to claim this time
on her Time and Attendance sheet, nor would her supervisor pay the bill
she submitted for time worked;
3) from late summer 1996 through winter 1996, she was denied options
open to her under the Family Friendly Leave Act (FFLA) that would have
allowed her to work at home;
4) on May 31, 1996, she was issued a Performance Improvement Plan (PIP);
she received her Within Grade Increase despite the PIP (the pay increase
was later withdrawn once the error was discovered); she did not receive
training to improve her problems; the duration of the PIP was extended;
and her annual performance evaluation was withheld until the end of the
PIP;
5) in April 1996, she was given the additional duty of supervising one
employee, even though she was not qualified to do so; and,
6) in June 1996, she was accused of falsifying her Time and Attendance
sheets, monitored by a co-worker and subjected to an investigation.
At the Step 1 and 2 decision levels, all six of complainant's grievances
were denied on the basis that she had untimely filed the grievances,
in that the incidents complained of happened more than 30 days prior
to the filing of the grievances, as provided for by the grievance
procedure. The grievances were also denied because complainant had
contacted an EEO Counselor on the same issues and therefore had already
elected to proceed under the EEO procedure.
In the Step 3 decision, the agency official found that complainant's
grievances were improperly denied on the basis of prior EEO contact in
that she had only filed an informal EEO complaint and had not elected to
pursue the filing of a formal EEO complaint. He also found that it was
proper to combine all six grievances because the matters and incidents
raised in each were essentially the same. The grievances relating to
issues 1, 2, 4, 5 and 6 were found to have been untimely filed, and
therefore properly dismissed at the lower grievance levels. Regarding
issue 3, the agency official found that work-at-home arrangements are not
a right guaranteed under the FFLA, or under the related Family Medical
Leave Act (FMLA), and complainant's claims did not allege violations
of the FFLA or the FMLA because she did not allege a denial of the
use of leave. The decision also addressed complainant's allegations
of discrimination, concluding that complainant had failed to present a
prima facie case, and even if she had, management had given legitimate,
non-discriminatory reasons for its actions which complainant had failed to
show were pretext. The decision noted that complainant's discrimination
allegations were always presented in "general or conclusional terms" and
that requests for clarification were not responded to by the complainant.
This appeal followed. Complainant argued that she was being discriminated
against on the bases of her sex, pregnancy, and unmarried status, and
that the stress caused by the agency's actions had caused her to suffer
from mental disabilities (Depression and Post Traumatic Stress Disorder).
She claimed that the agency discriminated against her by not allowing
her to work at home during the course of her difficult pregnancy.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may
appeal to the Commission from a final decision of the agency, the
arbitrator or the Federal Labor Relations Authority on a grievance
when an issue of employment discrimination was raised in a negotiated
grievance procedure that permits such issues to be raised.
The agency found that under the grievance procedure outlined in the
collective bargaining agreement between the agency and the union, the
complainant had untimely filed the grievances relating to issues 1, 2,
4, 5 and 6. In Johnson v. Equal Employment Opportunity Commission,
EEOC Request No. 05910188 (March 20, 1991), the Commission held that
it does not have jurisdiction to review procedural determinations by
an agency solely related to the grievance process and the collective
bargaining agreement, such as the timeliness of the filing of the
grievance or the timeliness of filings of appeals from the original
Step 1 decision. Therefore, we find that we do not have jurisdiction
to review complainant's appeal on these grievances.
Initially, we note that pregnancy is not a disability within the meaning
of the Rehabilitation Act. Stewart v. U.S. Postal Service, EEOC Request
No. 05960071 (December 18, 1996); 29 C.F.R. � 1630 app. � 1630.2(h);
Definition of the Term "Disability," EEOC Compliance Manual Section
902, 902-9 (March 14, 1995) ("Because pregnancy is not the result of a
physiological disorder, it is not an impairment. Complications resulting
from pregnancy, however, are impairments" which can rise to the level
of a disability if a major life activity is substantially limited.)
Complainant's claim that she was discriminated against on the basis of
her pregnancy is more properly analyzed as sex discrimination. Under
the Pregnancy Discrimination Act of 1978, which amended Title
VII, discrimination because of or on the basis of sex includes any
discrimination "on the basis of pregnancy, childbirth or related medical
reasons." This section specifies that "women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same for
all employment-related purposes ... as other persons not so affected but
similar in their ability or inability to work ...." 42 U.S.C. � 2000e(k).
Under the agency's policy regarding work-at-home arrangements, anyone
applying for this work option must be performing at a fully successful
level in order for the request to be approved. Complainant was not
performing at this level and therefore was treated the same as any other
employee at her workplace when her request was denied. We find that
complainant was not discriminated against on the basis of her sex.
In issue 3, complainant alleged that she was denied the ability to work
at home under the FFLA. EEOC Regulation 29 C.F.R. � 1614.103(a) provides
that individual and class complaints of employment discrimination and
retaliation prohibited by Title VII (discrimination on the bases of race,
color, religion, sex and national origin), the ADEA (discrimination on
the basis of age when the aggrieved individual is at least forty years of
age), the Rehabilitation Act (discrimination on the basis of disability),
or the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with 29 C.F.R. � 1614 by the Commission. The Commission
does not enforce alleged violations of the FFLA, and therefore we have
no jurisdiction to review the agency's decision on this grievance issue.
Accordingly, the decision of the agency is AFFIRMED.
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 (S0900)
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:
___10-03-00______ __________________________________
Date Carlton M. Hadden, Director
Office of Federal Operations
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
1 On 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 29 C.F.R. � 1614, where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.