Paula Fisk, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 14, 1999
01975016 (E.E.O.C. Jan. 14, 1999)

01975016

01-14-1999

Paula Fisk, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Paula Fisk v. Department of the Navy

01975016

January 14, 1999

Paula Fisk, )

Appellant, )

)

v. ) Appeal No. 01975016

) Agency No. DON97-60259-004

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., the Age Discrimination in Employment Act of

1967, as amended (ADEA), 29 U.S.C. �621 et seq., and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The final

decision was issued on May 9, 1997. The appeal was postmarked June 7,

1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

On January 7, 1997, appellant initiated contact with an EEO Counselor.

On February 4, 1997, the agency issued appellant a Notice of Final

Interview, which was received by appellant on February 14, 1997.

Therein, the agency noted that appellant had undergone EEO counseling

on the following actions purportedly taken by the agency: failure to

provide her reasonable accommodation; transmission of confidential

information to her former attorney; failure to provide her with a

letter of acceptance/consolidation; submission of false information

to the Department of Labor; denial of her request for additional time

to recuperate and, if this request were not granted, time to file for

retirement while still in medical benefits status; continued sexual

harassment; and removal from her position as a Career Resource Specialist

without a required notice. Appellant was informed that if she did not

file a formal complaint within fifteen days of her receipt of the Notice

of Final Interview, her complaint may be dismissed as untimely.

By fax transmission on March 7, 1997, appellant sent the agency numerous

formal complaints alleging unlawful employment discrimination on the

bases of sex, age, disability, and reprisal. These complaints were

consolidated under Agency No. DON97-60259-004. Appellant's complaint

was comprised of the matters that were addressed in the Notice of Final

Interview of February 4, 1997, and several other allegations relating to

the purported failure of agency officials to provide her with assistance

or intervene on her behalf.

On May 9, 1997, the agency issued a final decision. Therein, the agency

determined that appellant's consolidated complaint was comprised of nine

allegations that were identified in the following fashion:

a. Were you removed/constructively discharged from your position as

Career Resources Specialist and Spouse Employment Coordinator, with no

notice given on December 20, 1996?

b. Were you harassed and forced to endure a hostile work environment

when the Director, family Services Center referred to you as "crazy,"

and used profane language to describe African-Americans, the disabled,

individuals of other ethnic backgrounds, and your former Deputy Director?

c. Did your former Commanding Officer deny you reasonable accommodation

in terms of flexiplace, flexible work hours, and additional official

time to recuperate as well as time to file for medical or immediate

retirement while still in medical benefits status on December 17, 1996?

d. Was a confidential letter sent to your former attorney by the Human

Resources Office, Formal Complaints Branch in December 1996?

e. Did you not receive your acceptance/consolidation letter from the

HRO Formal Complaints Branch in December 1996?

f. Were you notified of your removal after the fact by the HRO Employee

Benefits Office subsequent to December 20, 1996?

g. Did the Commander, Naval Air Force, Pacific Fleet, ignore your

request for assistance in January 1997?

h. Were you provided advice by a Naval Executive Officer to call a

crisis hotline about your concerns in January 1997?

i. Did the Commander Naval Base, San Diego, not intervene on your behalf

and, instead, refer you to the Merit Systems Protection Board or EEO

complaint process in January 1997?

The agency dismissed allegations (a) - (g) on the grounds that appellant

filed an untimely EEO complaint. Specifically, the agency found that

appellant received a Notice of Final Interview on February 14, 1997, and

that she did not file a formal complaint until March 7, 1997, which was

beyond the fifteen-day limitation period for filing a timely complaint.

The agency dismissed allegations (h) and (i) for failure to state a claim,

and dismissed allegation (g) on the alternative grounds of failure to

state a claim.

On appeal, appellant argues that when she filed the formal complaint

on March 7, 1997, she had been on anti-depressant medication for

approximately two or three days, and that tension headaches, crying

spells, and fatigue had dissipated sufficiently for her to finally prepare

the paperwork relating to filing a formal complaint. Appellant argues

that she would have timely filed the formal complaint if she had not been

ill and if she had not been consumed with obtaining medication to control

symptoms for her various illnesses. Appellant also argues that she was

rendered aggrieved by the matters set forth in allegations (g) - (i).

EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written

complaint with an appropriate agency official within fifteen (15)

calendar days after the date of receipt of the notice of the right to

file a complaint required by 29 C.F.R. �1614.105(d), (e) or (f).

EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in ��1614.105, 1614.106, and

1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

Regarding allegations (a) - (g), appellant alleged that her delay

in filing a formal complaint was attributable to attempting obtaining

medication to control symptoms for various illnesses. When an appellant

claims that a physical condition prevents her from meeting a particular

filing deadline, we have held that in order to justify an untimely filing,

the appellant must be so incapacitated by the condition as to render

her physically unable to make a timely filing. See Zelmer v. USPS,

EEOC Request No. 05890164 (March 8, 1989). The same is true regarding

claims of incapacity related to psychiatric or psychological conditions.

See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992).

Nothing in the record supports appellant's contention that she was so

incapacitated during the applicable fifteen-day period as to prevent

her from timely filing a formal complaint. Appellant has failed

to present adequate justification, pursuant to 29 C.F.R. �1614.604(c)

for extending the filing period. Accordingly, the agency's decision to

dismiss allegations (a) - (g) on the grounds that appellant's complaint

was untimely filed was proper and is AFFIRMED.

EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal

of a complaint which fails to state a claim within the meaning of

29 C.F.R. �1614.103. In order to establish standing initially under

29 C.F.R. �1614.103, a complainant must be either an employee or an

applicant for employment of the agency against which the allegations of

discrimination are raised. In addition, the allegations must concern an

employment policy or practice which affects the individual in his capacity

as an employee or applicant for employment. An agency shall accept a

complaint from any aggrieved employee or applicant for employment who

believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal

sector case precedent has long defined an "aggrieved employee" as one

who suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

In allegation (h), appellant alleged that an agency official improperly

suggested she contact a crisis hotline in January 1997; in allegation

(i), appellant alleged that an agency Commander did not intervene on her

behalf but, instead, referred her to the Merit Systems Protection Board

or the EEO complaint process. The Commission determines that neither

allegation addresses a loss or harm relating to a term, condition, or

privilege of appellant's employment. Accordingly, the agency's decision

to dismiss allegations (h) and (i) for failure to state a claim was

proper and is AFFIRMED.<1>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Jan. 14, 1999

DATE Ronnie Blumenthal, Director

1 Because we affirmed the agency's decision to dismiss allegation

(g) as untimely, we find it unnecessary to address the agency's decision

to dismiss this allegation on alternative grounds.