Delphine Richardson, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 28, 1999
01980397 (E.E.O.C. Jan. 28, 1999)

01980397

01-28-1999

Delphine Richardson, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


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