01976733
06-04-1999
Sharon Gain, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sharon Gain v. Department of the Army
01976733
June 4, 1999
Sharon Gain, )
Appellant, )
)
v. ) Appeal No. 01976733
) Agency No. BSEUF09703H0080
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The Commission finds that the agency's August 8, 1997 decision<1>
dismissing appellant's complaint on the bases of failure to state a claim
and untimely EEO counselor contact is proper pursuant to the provisions
of 29 C.F.R. �1614.107(a) and (b).
The record shows that appellant alleged that she had been discriminated
against on the basis of physical disability (knee injury/arthritis) when:
(1) the agency provided and encouraged a misleading statement regarding
her work related injury to avoid liability, although it was aware of the
misinformation;<2> (2) her supervisor lowered her scheduled work hours;
and, (3) the head of CPO knew and encouraged policies and practices
designed to discourage disability claimants, such as contacting the
supervisor of appellant's husband. The agency's final decision dismissed
allegation (1) on the grounds of failure to state a claim after finding
that this issue was one under the jurisdiction of the Office of Workers
Compensation Program (OWCP) and not the EEO forum.<3> We agree with the
agency's dismissal of allegation (1) on the grounds of failure to state
a claim. Allegation (2) was dismissed on the grounds of untimely EEO
counselor contact. The agency stated that although appellant learned
about the reduction of her work hours on November 21, 1996, and said
change was effective December 1, 1996, she did not seek EEO counseling
until January 27, 1997, beyond the 45-day time limit provided by EEOC
Regulations. We agree that appellant's counselor contact was untimely
with regard to allegation (2). Allegation (3) was dismissed on the
grounds that appellant had failed to show that she had been aggrieved
by the actions of the agency. We agree. Accordingly, the agency's
decision dismissing the complaint is AFFIRMED.
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. �l6l4.604(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 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:
June 4, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The agency rescinded its March 7, 1997 final decision and issued this
revised decision.
2 This information was allegedly provided to the Department of Labor,
as part of appellant's worker's compensation claim.
3 It is within OWCP's jurisdiction to determine whether a compensation
claim with OWCP has merit, and OWCP claims are not appealable to the EEOC.
Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29,
1994).