Sharon Hannon, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a00813 (E.E.O.C. Jul. 6, 2000)

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.