01980397
01-28-1999
Delphine Richardson v. Department of Veterans Affairs
01980397
January 28, 1999
Delphine Richardson, )
Appellant, )
)
)
v. ) Appeal No. 01980397
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Appellant timely filed an appeal with this Commission from a final
decision of the agency dated September 9, 1997, concerning 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., the Age
Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. �621
et seq., and �501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq. The appeal was postmarked on October 1, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that the complaint states the same claim that
is pending before or has been decided by the agency or Commission.
BACKGROUND
A review of the record reveals that appellant sought counseling on
September 16, 1997. She filed a formal complaint on October 16, 1997,
alleging discrimination based on race (African-American), age (54),
and physical disability (foot injury) and reprisal (for prior EEO
activity) when she received a) an admonishment; b) an assignment
of duties; c) harassment; d) reassignment; e) termination/removal
on September 13, 1996; and f) other adverse working conditions.
The agency dismissed allegations (a) - (f) on the grounds that they
stated the same claims that were pending before the agency in a prior
complaint filed by appellant on February 23, 1996. The agency accepted
for investigation the allegation that she was harassed on August 15
and 23, 1996, and placed in AWOL status and subsequently removed on
September 13, 1996. On appeal, the appellant raised no new contentions.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) requires the agency to dismiss
a complaint or a portion of a complaint that fails to state a claim
under �1614.103 or �1614.106(a) or states the same claim that is pending
before or has been decided by the agency or Commission. The Commission
has interpreted this regulation to require that the allegation must set
forth the "identical matters" as are contained in a previous complaint
filed by the same complainant, in order for the subsequent complaint to
be rejected as stating the same claim. See Russell v. Dept. of the Army,
EEOC Request No. 05910613 (August 1, 1991).
After a thorough review of the record, the Commission finds that the
agency improperly dismissed appellant's complaint for stating the same
claim that was raised in a prior complaint. We find that the agency
has not submitted evidence sufficient to establish that the issues were
raised in previously filed complaints. We also find that the issues in
the present complaint are vague and contain generalized issues. We find
that the agency has not properly defined appellant's complaint. We find
that the complaint is vague in places and contains numerous alleged facts.
The Commission can not distinguish between live allegations therein from
background information intended to support allegations. In a similar
situation, the Commission remanded the complaint back to the agency
so that appellant could meet again with an EEO Counselor in order that
an agreement could be reached on the issues in appellant's complaint.
Smith v. United States Postal Serv., EEOC Request No. 05921017 (Apr. 15,
1993). The Commission noted in Smith that EEO Management Directive 110,
Chap. 2, III (Oct. 22, 1992), provides that at the counseling stage,
the EEO Counselor must be certain that the complainant's issues are
clearly defined and that the complainant agrees on what issues are to be
the subject of the inquiry and subsequent attempts at resolution. Id.
On remand, the EEO Counselor, after meeting with appellant, must issue a
new report concerning the meeting(s) and defining the complaint. See id.
CONCLUSION
Accordingly, the agency's decision to dismiss the complaint was improper
and is VACATED. The complaint is REMANDED for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to process appellant's complaint in accordance with
29 C.F.R. Part 1614 and instructions in this decision. Specifically,
the agency shall:
1. Schedule in writing a meeting between appellant and an EEO Counselor
so an agreement can be reached on the issues in appellant's complaint.
After the meeting(s), the counselor must issue a new counselor's report
concerning the meeting(s) and defining the complaint. Appellant shall
not be required to refile her complaint.
2. If an agreement cannot be reached on a definition of the issues in
appellant's complaint, then the agency shall issue a FAD defining the
complaint. Such a FAD must explicitly define all the allegations in
the complaint, i.e., the agency shall not dismiss allegations, de facto,
by failing to define or address allegations.
3. The agency shall notify appellant in writing of all allegations, if
any, it is accepting for investigation. If the agency wishes to dismiss
any allegations, then it must issue a FAD doing so. Such a FAD must list
all allegations being dismissed and provide the grounds for dismissal.
4. The agency shall complete all the above actions within sixty (60)
calendar days of the date this decision becomes final.
5. A copy of the agency's letter to appellant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or FAD issued
pursuant to instruction 3 above must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (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:
January 28, 1999
________________ ______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations