01a03262
07-17-2000
Delores Timmons, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Delores Timmons v. Department of Veterans Affairs
01A03262
July 17, 2000
Delores Timmons, )
Complainant, )
)
v. ) Appeal No. 01A03262
) Agency No. 995962
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Delores Timmons (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 28, 2000 dismissing her
complaint of unlawful employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). In her complaint,
complainant alleged that she was subjected to harassment based on her
age when:
on November 16, 1999, a co-worker (CW1) accused her of not assisting
in restraining a patient.<2>
In its FAD, the agency noted that complainant identified several other
incidents in support of her harassment claim in a January 13, 2000
mailing to her counselor, including:
(2) on June 14, 1999, she received written counseling on narcotic
adjustment from the Clinical Nurse Manager (CNM);
(3) on July 16, 1999, she received written counseling on the use of
leave;
on July 31, 1999, she received written counseling for leaving her keys
in a door (and allowing a patient to remove them);
on December 21, 1999, a request was submitted by the Chief of the
Nursing Section (CNS) to bring a disciplinary action against complainant
because she failed to respond to a patient emergency and failed to
administer medications according to established procedures; and
on January 6, 2000, CNM issued complainant a proposed reprimand.
The agency dismissed claim 1 pursuant to 64 Fed. Reg. 37,644,
36,656 (1999) (codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1)), noting that complainant suffered no loss with respect
to a term, condition, or privilege of employment due to CW1's remarks
and that the incident therefore failed to state a claim. The agency
dismissed claims 2-6 pursuant to 64 Fed. Reg. 37,644, 36,656 (1999)
(codified and hereinafter referred to as 29 C.F.R � 1614.107(a)(2)).
The agency concluded that these incidents were not discussed with the
EEO Counselor and were not like or related to the incident that was
discussed.
On appeal, complainant contends that it was her EEO Counselor who
instructed her to add claims 2-6 concerning harassment at the hands
of CNS and CNM when informal resolution failed. She notes that claim
1 involved not only CW1's comments, but CNS's refusal to discuss the
incident and CNM's bias towards CW1. She claims that she has been
harassed due to �age, race, and ethnic values� as evidenced by all of
the incidents described.
The agency requests that its FAD be affirmed.
FINDINGS AND ANALYSIS
A careful review of the record reveals that complainant attempted to amend
her complaint by sending her EEO Counselor information about claims 2-6.
Although when she did this is not entirely clear, the agency contends that
the counselor received information pertaining to claims 2-6 on January
13, 2000. Commission regulations require the agency to allow complainant
to amend her complaint at any time before the investigation is finished
to include claims that are �like or related� to the original complaint.
Further counseling is not required. See 64 Fed. Reg. 37,644 37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.106(d)).
Commission precedent establishes that a later allegation or complaint
is like or related to the original complaint if the later allegation or
complaint adds to or clarifies the original complaint and could have
reasonably been expected to grow out of the original complaint during
the investigation. See Calhoun v. United States Postal Service, EEOC
Request No. 05891068 (March 8, 1990); Webber v. Department of Health
and Human Services, EEOC Appeal No. 01900902 (February 28, 1990).
The agency argued that claims 2-6 are not like or related to claim 1.
We note, however, that complainant alleged that she was subjected to a
pattern of harassment and offered claims 1-6 as evidence. Thus, claims
2-6 can be considered additional allegations of alleged harassment
and are, therefore, like or related to the matter on which complainant
received counseling. See Price v. General Services Administration, EEOC
Request No. 05960829 (October 1, 1998) (uncounseled allegations are like
or related to counseled allegations where complainant characterized them
as part of a pattern of ongoing discriminatory harassment). In claims
2-6, complainant alleges she was harassed by superiors in her chain
of command (CNS and CNM) when she was disciplined or discipline was
proposed in regard to her alleged failure to properly perform her duties
or follow regulations. While claim 1involved a co-worker's accusation
that complainant failed to properly perform her duties, a review of
the record as a whole reveals complainant's belief that the refusal of
superiors in her chain of command (CNS and CNM) to discuss the incident
was a form of harassment. This is stated in complainant's statement
on appeal, but also is indicated by the fact that complainant named CNS
and CNM as responsible management officials in her counseling session
and noted that CNM was biased in favor of CW1.
We find, therefore, that claims 2-6 are like or related to complainant's
original complaint in that they are properly considered additional
incidents of alleged harassment. The agency's dismissal of claims 2-6
was therefore improper. Moreover, the agency's dismissal of claim 1 for
failure to state a claim was improper in that claims 1-6, taken together,
state a claim of harassment. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
Accordingly, we hereby VACATE the agency's dismissal of claims 1-6 and
REMAND the matter for further processing in accordance with this decision
and the Order below.<3>
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 17, 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.
2 A review of the Counselor's report and other documents in the record
clarify that complainant also believed that the Chief of the Nursing
Section (CNS) and the Clinical Nurse Manager (CNM) were involved in this
allegedly harassing incident in that CNS refused to discuss the event
with complainant and CW1 and CNM was biased in favor of CW1.
3 Although complainant's complaint indicates that age is the basis for
her harassment allegation, on appeal complainant alleges that she was
subjected to harassment on the bases of �race, age and ethnic values.�
A complainant may amend his or her complaint to add another statutory
basis for an alleged discriminatory occurrence without changing the
identity of the claim. Dragos v. United States Postal Service, EEOC
Request No. 05940563 (January 19, 1995). We advise complainant that if
she wishes to pursue her harassment allegation on any basis in addition
to age, she should inform the agency on remand.