01994800
12-15-2000
Eusebia Aquino-Hughes, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Eusebia Aquino-Hughes v. Department of Veterans Affairs
01994800
December 15, 2000
.
Eusebia Aquino-Hughes,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994800
Agency No. 98-4163
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.<1> The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
On May 5, 1999, the agency issued a decision dismissing one claim raised
in complainant's EEO complaint for failure to state a claim and the
remainder of the claims on the grounds that complainant did not bring
the matters to the attention of an EEO Counselor, and that they are not
like or related to matters for which complainant underwent EEO counseling.
Regarding the matter dismissed for failure to state a claim, the
agency noted that complainant claimed she was discriminated against
when on January 13, 1998, two co-workers made derogatory statements to
her regarding her national origin. Finding that complainant did not
demonstrate that she suffered a specific harm as a result of the alleged
incident, the agency dismissed the matter for failure to state a claim.
The agency also determined, based on a review of the Counselor's Report,
that the co-worker incident was the only issue counseled.
The agency dismissed the remaining claims in the complaint for failing
to raise the matters with the EEO Counselor, including: �Assignment of
Duties, 1/95 - 6/98; Conversion to Full-Time, 1/97 - 6/98; Duty Hours,
1/95 - 6/98; Failure to Hire, 1/97 - 6/98; Failure to Promote; Performance
Appraisal/ Proficiency Report; Reassignment, 1/15/98; Sexual Harassment;
Suspension, 1/15/98; Termination/Removal, 1/15/98; Time and Attendance,
1/15/98; Training; Working Conditions, 1/95 - 6/98; and Other.�
On appeal, complainant contends that �[n]o one would take my complaint
at VA Detroit for a long time.� In addition, she argues that two
individuals are being punished because they tried to help her during
�this painful situation.�
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim 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 Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
Based on a review of the record, which contains copies of two EEO
Counselor's Reports, the Commission determines that the agency improperly
dismissed complainant's claims. Although the agency concluded in
its decision that �the only documented issue brought to the attention
of the counselor throughout the counseling process was the issue of
two co-workers making a derogatory statement...�, we determine that
complainant received counseling on a variety of matters. Specifically,
one EEO Counselor's report reflects that complainant contacted the Detroit
EEO office on January 14, 1998, and that the issues discussed included:
�assignment of duties, 1/13/98; failure to promote; harassment, 1/13/98;
training; working conditions, 1/13/98; and other (repeated racial
insults), 1/13/98.�
A second Counselor's Report shows that complainant contacted another
EEO Counselor on October 27, 1998 regarding: conversion to full time,
failure to hire, harassment (non-sexual), training, and hostile work
environment (forced resignation). Based on an interview with complainant,
the Counselor noted that complainant believed she was forced to resign
on July 24, 1998, after several months of harassment; that she was not
given the opportunity to attend training vital to her career; that she
was denied a full-time position; that requests not to rotate to midnight
were denied; and that she was not provided reasonable accommodation.
The Commission determines that the record shows that complainant received
counseling on the matters raised in her formal complaint. Therefore,
the agency's dismissal of a portion of the complaint, pursuant to 29
C.F.R. �1614.107(a)(2) was improper and is REVERSED.
Regarding the January 13, 1998 incident (derogatory statements made by
two co-workers), we find that this matter is part of complainant's broader
claim of discriminatory harassment and therefore states a claim. As noted
above, complainant explained to the EEO Counselor that she was subjected
to ongoing harassment which eventually resulted in her resignation.
The Commission has previously held that an agency should not ignore the
�pattern aspect� of a complainant's claims and define the issues in a
piecemeal manner where an analogous them unites the matters complained of.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994). Here, the agency fragmented complainant's claim
and characterized a specific incident on January 13, 1998, as a separate
and distinct claim, which it then dismissed. Instead, we find that the
January 13, 1998 incident illustrates complainant's contention that on
numerous occasions she was subjected to harassment based on her national
origin. Consequently, the agency should have accepted the claim as part
of the broader issues complainant discussed with the EEO Counselors.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint 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 remanded claims 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 15, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.