01a00813
07-06-2000
Sharon Hannon, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Sharon Hannon v. Department of the Treasury
01A00813
July 6, 2000
Sharon Hannon, )
Complainant, )
)
v. ) Appeal No. 01A00813
) Agency No. 99-1298T
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On October 21, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
September 27, 1999, pertaining to 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, and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
In her complaint, complainant claimed that she was subjected to
discrimination on the bases of physical disability (lower back)
and reprisal (prior EEO activity) when the agency interfered with her
application for workers' compensation benefits and disability retirement.
Specifically, complainant claimed that the agency made false statements
to the Office of Workers' Compensation Program (OWCP) and the Office of
Personnel Management (OPM) regarding her claim. Complainant further
claimed that numerous telephone calls were made to the Department of
Labor that would not have been made in other cases; that her case did
not follow a normal processing routine; that the integrity of the OWCP
process was repeatedly compromised; and that she was referred to as
"the enemy" by an agency official during the processing of the OWCP
claim. Complainant also claimed that during the period she pursued her
workers' compensation and disability retirement claims, the agency
offered her employment positions which she was unable to perform and
provided insufficient time for her to accept or reject such positions.
The agency dismissed complainant's complaint pursuant to Volume 64
Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)), for failure to state a claim. Specifically,
the agency identified the instant complaint as a collateral attack on the
worker's compensation process, and therefore determined that complainant
failed to state a claim pursuant to EEOC Regulations.
On appeal, complainant argues that her complaint was improperly
dismissed for failure to state a claim. Complainant further argues,
for the first time on appeal, that the agency failed to "make any real
effort to reasonably accommodate" her.
In response, the agency argues that the complaint was properly dismissed
for failure to state a claim. The agency also argues, for the first time
on appeal, that the complaint was rendered moot because shortly after
the instant complaint was filed, OPM granted complainant's application
for disability retirement; and because complainant admitted that she
is currently on the Department of Labor's long term disability roles.
Finally, the agency argues that the issue of reasonable accommodation
was not raised during EEO counseling or in the formal complaint, and
was addressed for the first time by complainant on appeal.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim. 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, .106(a).
The Commission determines that the instant complaint encompasses
a comprehensive series of actions relating to the agency's purported
actions in representing its interests, when complainant pursued an
OWCP claim and a disability retirement application, i.e., numerous
telephone calls by the agency to the Department of Labor; and making of
false statements to OWCP . The Commission determines that complainant
has alleged a personal loss or harm regarding a term, condition, or
privilege of employment on these matters. See Beall v. USPS, EEOC
Appeal No. 01940820 (December 13, 1994). Accordingly, the agency's
decision to dismiss the instant complaint was improper and is REVERSED.
Complainant's complaint is REMANDED to the agency for further processing
in accordance with the ORDER below.
We note that on appeal, the agency argues for the first time that
complainant's complaint has been rendered moot. The Commission
discerns no evidence in the record that renders the complaint moot. The
Commission notes that for the first time on appeal, complainant addresses
the issue of a denial of reasonable accommodation. Complainant is advised
to contact an EEO Counselor if she wishes to pursue this issue further.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
July 6, 2000
______________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.