Janie M. Jones, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01996600 (E.E.O.C. Nov. 17, 2000)

01996600

11-17-2000

Janie M. Jones, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Janie M. Jones v. Department of Veterans Affairs

01996600

11-17-00

.

Janie M. Jones,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01996600

Agency No. 99-3614

DECISION

On August 26, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) concerning her complaint

that the agency discriminated against her in violation of � 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and

the Age Discrimination in Employment Act (ADEA) of 1967, as amended,

29 U.S.C. � 621 et seq.<1> The appeal is accepted by the Commission in

accordance with 29 C.F.R. � 1614.405.

In June 1999, complainant filed a complaint alleging that she was

discriminated against due to her age (DOB: 5/1/34) and disability

(physical/unspecified) when on or about October 9, 1998, she was

permanently reassigned to the position of Social Service Assistant,

GS-186-06. Her complaint also contained additional claims concerning

ongoing harassment; a June 13, 1999 suspension; training; and her

working conditions.

The agency issued a FAD dismissing complainant's reassignment claim

on the grounds that she sought EEO counseling in an untimely manner.

The additional claims were dismissed on the grounds that these matters

were never brought to the attention of the EEO counselor and were not

like or related to the reassignment claim. This appeal followed.

Reassignment

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,

that the agency shall dismiss a complaint or a portion of a complaint that

fails to comply with the applicable time limits contained in � 1614.105.

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 record indicates that complainant was reassigned in October 1998;

however, she did not contact an EEO counselor about the matter until

May 7, 1999. The EEO counselor's report indicates that she did not

contact a counselor earlier because �[s]he was not displeased with

the reassignment, but recently realized that the position was not in a

field in which she had any experience.� Although complainant, on appeal,

disputes the counselor's contention that she stated she was pleased with

her �present assignment in psychology,� she never provided an explanation

for why she did not contact a counselor during the time limitation period.

In her appeal statement, complainant stated that �I am well aware of

the time limit [for] filing an EEO complaint.� Consequently, we AFFIRM

the dismissal of this claim.

Additional Claims

EEOC Regulation 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. USPS, EEOC Request

No. 05940702 (May 30, 1995); Calhoun v. USPS, EEOC Request No. 05891068

(March 8, 1990).

Contrary to the agency's assertions, complainant stated that she did raise

these additional claims with the EEO counselor. Complainant maintained

that these claims were her primary reason for seeking counseling, not

the reassignment issue. According to complainant, she had to remind

the counselor, on several occasions, about the additional claims.

Complainant indicated that she �[w]as appalled by [the counselor's]

refusing to listen and acknowledge or recognize my complaint issues.

She [the counselor] became upset because I would redirect her questions

for clarity.�

After a careful review of the record, we find that the preponderance

of the evidence supports the complainant's position that she raised

these matters during counseling. Although the EEO counselor's report

only discussed the reassignment issue, we note a letter contained

in the record dated May 19, 1999. In the letter, the EEO Regional

Officer informed management that complainant had sought counseling.

According to the letter, �the issue raised related to harassment on

the basis of age and physical handicap.� The agency's position, i.e.,

that complainant only raised the reassignment issue, is rebutted by the

May 19, 1999 letter. It is the decision of the Commission to REVERSE

the agency's dismissal of the additional claims raised by complainant

in her complaint and to REMAND these matters for further processing in

accordance with this decision and applicable regulations.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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

__11-17-00____________________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________________________

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.