Teresa M. Bonk, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 4, 2003
01A23485_r (E.E.O.C. Mar. 4, 2003)

01A23485_r

03-04-2003

Teresa M. Bonk, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Teresa M. Bonk v. Department of Transportation

01A23485

March 4, 2003

.

Teresa M. Bonk,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A23485

Agency No. 3-02-3025

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 3, 2002, dismissing her complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.

On October 18, 2001, complainant initiated contact with an EEO Counselor.

Informal efforts to resolve her concerns were unsuccessful. In her

formal complaint filed on January 23, 2002, complainant alleged she was

subjected to harassment on the basis of disability. Complainant further

alleged that as a result, she �had no alternative but to retire . . .�

In a final decision dated June 3, 2002, the agency determined that

complainant's complaint was

comprised of seven claims, that were identified in the following fashion:

(1) the command was not accommodating with complainant's disability;

(2) the command discriminated against her because of her disability;

(3) her supervisor disliked her because of her disability and was

annoyed and impatient;

(4) the agency harassed her by seeking more medical information from

her doctor;

(5) the agency provided no formal training for her new job;

(6) the agency placed her in an AWOL status; and

(7) the agency had no compassion for her disability even after she

attempted suicide.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact. The agency determined that the most recent alleged

discriminatory event was the matter raised in claim 6, and that this

matter occurred on May 24, 2001. The agency then determined that

complainant's initial EEO Counselor contact on October 18, 2001, was

untimely with regard to all seven claims.

On appeal, complainant argues that the agency intentionally made her

work situation so intolerable that she was forced to retire from agency

employment. Complainant also argues that her EEO contact was timely

based on her retirement approval date of September 15, 2001.

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 finds that the agency inappropriately framed complainant's

complaint when it construed the matters raised therein as being comprised

of seven separate claims. Rather, a fair reading of the record and

complainant's statement on appeal, reflects that complainant claimed

that she was subjected to discriminatory harassment that forced her to

retire from agency employment. Complainant's retirement was effective

in September 2001, complainant contacted an EEO Counselor on October

18, 2001. We find that complainant's EEO Counselor contact regarding

the constructive discharge claim was timely raised.<1> Moreover,

as complainant claims that agency harassment forced her retirement,

and because complainant timely contacted an EEO Counselor regarding the

constructive discharge claim, we determine that complainant's initial

EEO contact is timely regarding all the matters raised in her formal

complaint.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. The complaint as identified herein

is REMANDED to the agency for further processing in accordance with this

decision and the Order below.

ORDER (E0900)

The agency is ordered to process the complaint of harassment, including

the constructive discharge claim, in accordance with 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 (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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 4, 2003

__________________

Date

1On appeal, complainant argues that her

retirement was effective September 15, 2001. The EEO Counselor's

report indicated that the retirement was effective September 12, 2001.

The disparity in dates does not affect our disposition in this case.