Sandra Perillo, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 27, 1999
01985675 (E.E.O.C. Dec. 27, 1999)

01985675

12-27-1999

Sandra Perillo, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Sandra Perillo v. Department of the Treasury

01985675

December 27, 1999

Sandra Perillo, )

Complainant, )

) Appeal No. 01985675

v. ) Agency No. 98-3099M

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

)

DECISION

Complainant timely filed an appeal with the Commission from the final

action taken by the agency concerning her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

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

1967, 29 U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act

of 1973, 29 U.S.C. � 791.<1> The appeal is accepted in accordance with

EEOC Order No. 960.001. See 64 Fed. Reg. 37,644, 37,659 (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.402(a)).

Complainant filed a complaint in which she raised thirty incidents

of alleged discrimination on the bases of gender, mental disability

(depression), age (42), and reprisal. Upon reviewing the complaint,

we find that the incidents can be grouped into four separate claims of

discrimination, set forth below.

A. Removal:

Removal on October 31, 1997;

Not properly cleared on last day (10/31/97);

Receipt of proposed removal notice in hallway, May 13, 1997;

Not given feedback on assignments completed between January 3, 1997 and

October 31, 1997;

Not given administrative leave during 30-day proposal period; and

Not given training, guidance or direction during opportunity period.

B. Harassment:

Subjected to hostile work environment; and

Subjected to harassment.

C. Failure to accommodate a disability:

Not provided reasonable accommodations;

Branch chief questioned validity of complainant's medical records;

Branch chief made unannounced visit to complainant's doctor without her

authorization and requested copies of her medical records; and

Branch chief threatened complainant's doctor with a tax audit for the

next five years if the doctor did not provide him with complainant's

medical records.

D. Disparate treatment in employment terms and conditions:

Complainant denied opportunity to speak to director regarding grievances

and concerns;

Complainant did not receive rating of record due on January 17, 1997;

Ratings of record untimely prepared, which delayed within-grade pay

increases;

Workload reviews from 1994 through 1997 contained inaccurate information;

Complainant held to higher standard of performance;

Complainant's assignments well below grade level, and management refused

to expand her duties;

Inaccurate annual appraisals from 1994 through 1997;

Management did not provide complainant with any guidance or assistance;

Complainant did not receive copies of case assignments and closures;

Manager did not disseminate details, group processes, or quality

improvement projects to complainant, or include her in group activities

and other opportunities afforded her peers;

Complainant not allowed to participate in group project that resulted

in her group receiving an award;

Complainant denied opportunity to participate in flexiplace program;

Complainant denied a phone card;

Management reported complainant to inspection when a tax return was

lost;

Management failed to properly maintain complainant's EPF (undefined

term);

Management failed to honor complainant's request for her EPF and drop

files;

Management failed to reimburse complainant for travel; and

Management violated provisions of policy statement 120.

The agency dismissed the entire complaint on various grounds, including:

raising matters raised in a negotiated grievance procedure and in

previous complaints; untimely contact with an EEO counselor; and failure

to provide requested information. In so doing, the agency characterized

each incident as a separate allegation, thereby fragmenting the claims.

As the Commission's revised management directive makes clear, claim

fragmentation is not permitted. EEO Management Directive 110, 5-5

(November 9, 1999). Now that we have defined the claims, we can determine

whether the agency properly dismissed the complaint.

The agency dismissed the removal claim on the grounds that incidents (1)

through (5), and (7), which comprised that claim, had been raised in a

negotiated grievance procedure. EEOC Regulation 29 C.F.R. � 1614.301

gives complainants the choice of presenting their claims through the

administrative EEO complaints process or through a negotiated grievance

procedure. A letter from the agency to complainant's representative dated

April 3, 1998, indicates that the union, acting on complainant's behalf,

grieved the removal on March 31, 1998. Administrative File (AF) 5. On

appeal, complainant has not challenged the agency's determination that

the incidents (2) through (5), and (7) were inextricably intertwined

with incident (1), the removal itself. Therefore, we find that the

agency properly dismissed the removal claim.

The agency dismissed the harassment claim, which consisted of incidents

(9) and (10), for failure to respond to its request for information.

The agency must dismiss complaints where the agency has provided the

complainant with a written request to provide relevant information or

otherwise proceed with the complaint, and the complainant has failed to

respond to the request within 15 days of its receipt, or the complainant's

response does not address the agency's request, provided that the request

included a notice of the proposed dismissal. 64 Fed. Reg. 37,644,

37,656 (to be codified and hereinafter referred to as 29 C.F.R. �

1614.107(a)(7)).<2> By letter dated March 13, 1998, the agency informed

complainant that it needed additional information on all of the incidents

identified in the complaint, and that her failure to respond within

fifteen days would result in the dismissal of her complaint. AF 63-66.

Complainant's response did not provide the specific answers that the

agency requested. AF 56. Accordingly, we find that the agency acted

properly in dismissing complainant's harassment claim.

Turning now to the failure-to-accommodate claim, which encompassed

incidents (11) through (14), we find that the agency dismissed these

matters on two separate grounds. It dismissed incidents (11) and

(14), for failure to respond to its request for information. We find

that the agency acted properly in doing so, for the reasons stated in

the preceding paragraph. The agency also dismissed allegations (12)

and (13), but did so on the ground that these matters were raised

in previous EEO complaints. Commission regulations require the

agency to dismiss allegations raised in prior or pending complaints.

64 Fed. Reg. 37,644, 37,656 (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(a)(1)).<3> Documentation provided by the

agency indicates that complainant did raise incidents (12) and (13) in

Complaint No. TD-97-3020. We therefore find that the agency properly

dismissed the failure-to-accommodate claim.

Finally, we address the terms-and-conditions claim, which encompasses

eighteen of the thirty incidents. For the reasons set forth above, we

will affirm the agency's decision to dismiss the portion of the claim

covering incidents (6), (15), (21), and (25) through (30), for failure

to respond to the agency's request for information within fifteen days,

as discussed above. We will also affirm the agency's decision to dismiss

that portion of the claim involving incidents (17) through (20), and (22)

through (24). Documentation from Complaint Nos. 94-3224, 94-3224R,

94-3236, 96-3112, and 97-3020 establishes that the matters in question

were fully addressed in those prior complaints.

The agency dismissed that portion of the terms-and-conditions claim

involving incidents (8) and (16), for untimely counselor contact.

Complainants who believe that they had been discriminated against must

contact an EEO counselor within 45 days of the alleged discriminatory

incident. 29 C.F.R. � 1614.105(a)(1). The counselor's report indicates

that, with respect to the instant complaint, complainant first contacted

an EEO counselor on October 30, 1997. AF 80. Incident (8) occurred on

January 17, 1997. The most recent workload review mentioned in incident

(16) was issued on February 14, 1997, and complainant issued a rebuttal

on February 18th. AF 109.

To determine whether complainant's first EEO counselor contact

was timely, we must determine whether complainant should have had

reasonable suspicion of discrimination within 45 days of that contact.

The time limit for contacting an EEO counselor is triggered as soon

as the complainant reasonably suspects discrimination, not when all

the facts supporting a suspicion of discrimination become apparent.

Peets v. United States Postal Service, EEOC Request No. 05950725 (March

28, 1996); Bracken v. U.S. Postal Service, EEOC Request No. 05900065

(March 29, 1990). As previously noted, complainant had filed at least

five other complaints prior to filing this one. She filed the first of

those complaints in 1993. Therefore, given her extensive experience

with the EEO administrative process, she should have had reasonable

suspicion of discrimination as soon as incidents (8) and (16) occurred,

or shortly thereafter.

The agency must nevertheless extend the 45-day time limit if complainant

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 had 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. 29 C.F.R. � 1614.105(a)(2). Complainant has

not presented any arguments or evidence in support of her appeal which

tends to establish any of these circumstances. We therefore find that

the agency correctly dismissed incidents (8) and (16), for untimely

counselor contact. 29 C.F.R. � 1614.107(a)(2).

After a review of the record in its entirety, including consideration

all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

dismissing Complaint No. 98-3099M.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

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 the 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 the 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 the 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:

Dec. 27, 1999

DATE Carlton M. Hadden, Acting 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

_________________________

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 Formerly 29 C.F.R. � 1614.107(g).

3 Formerly 29 C.F.R. � 1614.107(a).