Patti Anne Reese, Complainant, Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 3, 2000
02970023 (E.E.O.C. Oct. 3, 2000)

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was later withdrawn once the error was discovered); she did not receive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.