01A11676_r
08-01-2002
Roberta L. Bondzie, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Roberta L. Bondzie v. Department of the Treasury
01A11676
August 1, 2002
.
Roberta L. Bondzie,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11676
Agency No. 01-1004
DECISION
Complainant filed an appeal with this Commission from a final agency
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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Believing that she was the victim of discrimination based on race and
disability, complainant contacted the EEO office on June 29, 2000.
Informal efforts to resolve her concerns were unsuccessful.
On October 11, 2000, complainant filed a formal complaint. Therein,
complainant claimed that she was discriminated against when:<1>
(1) on June 12, 2000, she received a Leave Restriction letter;
(2) she received harassing e-mail messages from her supervisor commencing
April 2000 - June 19, 2000;
(3)(a) on or about January 3, 2000, she was denied a reasonable
accommodation when her request to work flexi-place was denied.
Complainant made several subsequent unsuccessful requests, on, March 10,
2000 and August 30, 2000; and
(3)(b) her request for a less stressful project commencing January 3 -
August 30, 2000 was denied.
On December 4, 2000, the agency issued a final decision. Therein, the
agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4),
on the grounds that complainant had previously elected to pursue the
matter through the negotiated grievance procedure. The agency stated
that complainant filed a grievance on June 19, 2000 concerning her Leave
Restriction letter. The agency further stated that complainant withdrew
the grievance relating to the Leave Restriction letter and amended her
grievance to reflect the change on July 6, 2000. Further, the agency
dismissed claims (2), (3)(a), and (3)(b) pursuant to 29 C.F.R. �
1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
On appeal, complainant's counsel argues that complainant's leave
restriction was not part of the grievance process because the grievance
procedure allowed her to amend her grievance at any time before the
grievance meeting and that her EEO contact was timely.
In response, the agency argues that the claims raised in the instant
complaint were properly dismissed. The agency also argues for the
first time on appeal that the matter relating to request for a less
stressful assignment (claim (3)(b) was also first raised in the negotiated
grievance process.
Claims (1) and 3(b)
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination
to be raised in a negotiated grievance procedure, a person wishing
to file a complaint or grievance on a matter of alleged employment
discrimination must elect to raise the matter under either part 1614
or the negotiated grievance procedure, but not both. This subsection
also provides that an election to proceed under 1614 is indicated by the
"filing of a written complaint," while an election to proceed under a
negotiated grievance procedure is indicated by the "filing of a timely
written grievance." An aggrieved employee who files a grievance with an
agency whose negotiated agreement permits the acceptance of grievances
which allege discrimination may not thereafter file a complaint on the
same matter under this part 1614 irrespective of whether the agency has
informed the individual of the need to elect or whether the grievance
has raised an issue of discrimination.
With respect to claims (1) and 3(b), the Commission finds that complainant
elected to pursue the matter within the grievance procedure and that
the agency properly dismissed claims (1) and 3(b). The grievance and
claims (1) and 3(b) in the instant complaint both refer to complainant's
Leave Restriction letter and her request for a less stressful project.
The agency's collective bargaining agreement permits claims of
discrimination to be raised via the negotiated grievance procedure.
Although complainant withdrew claim (1) and amended her grievance to
reflect the change on July 6. 2000, the withdrawal of claim (1) does
not negate her prior election of the negotiated grievance procedure.
Marsh v. Department of the Treasury, EEOC Request No. 05910383 (August
8, 1991). The agency's decision to dismiss claims (1) and 3(b) is
therefore AFFIRMED. Because we affirm the dismissal of these claims
for the reason stated herein, we find it unnecessary to address the
dismissal of claim 3(b) for untimely EEO contact.
Claims 2 and 3(a)
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.
With regard to claim (2), we note that the record contains a copy of
complainant's attorney's response dated November 8, 2000 to the agency's
request for specific dates of the alleged discriminatory events.
We find that the harassing e-mail messages from her supervisor as
expressly articulated by complainant through her attorney, occurred
on April 25, 27 and 28, 2000; May 12, 2000; and June 6, 7, 8, 9, and
19, 2000. We find the June 6, 7, 8, 9, and 19, 2000 incidents were
within the forty-five days of complainant's June 29, 2000 initial EEO
Counselor contact. Because some of the purportedly harassing messages
occurred within 45 days of complainant's initial EEO Counselor contact,
we determine that all the incidents identified in this claim were timely
raised. Therefore, the agency's dismissal of claim (2) for untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2) was improper
and is REVERSED.
Regarding claim (3)(a), we find that it was properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(2), because complainant's June 29, 2000
initial EEO Counselor contact was untimely. The record indicates that
complainant had a reasonable suspicion of discrimination as early as
January 2000 when her request to work flexi-place was denied. The record
discloses that the alleged discriminatory events occurred on January 3,
2000, but that complainant did not initiate contact with an EEO Counselor
until June 29, 2000, which is beyond the forty-five (45) day limitation
period. Complainant has not submitted sufficient justification for an
extension of the 45-day limitation period. The agency's decision to
dismiss this claim is AFFIRMED.
In summary, the agency's decision dismissing claims (1), (3)(a) and (3)(b)
was proper and is AFFIRMED. The agency's decision dismissing claim (2)
is REVERSED. Claim (2) is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim (2)) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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
August 1, 2002
__________________
Date
1In its final decision, the agency identified the matters addressed in
claims 3(a) and 3(b) together, in a separate paragraph following the
matter identified in claim 2 For purposes of clarity, the Commission
has bifurcated this matter into claims 3(a) and 3(b) as referenced below.