01991712
03-14-2000
Joseph F. Aliberti, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Joseph F. Aliberti, )
Complainant, )
)
v. ) Appeal No. 01991712
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
On December 18, 1998, complainant filed a timely appeal of a November 18,
1998 final agency decision, which was received by him on November 24,
1998, dismissing his complaint for raising the matter in a negotiated
grievance and for failure to cooperate and/or due to untimely EEO
Counselor contact.<1>
In its final decision, the agency identified the claims of complainant's
January 1, 1998 complaint as whether complainant was discriminated against
concerning reassignment, training, and �other.� The agency stated that
with regard to the reassignment claim, complainant previously elected to
pursue the grievance procedure on February 2, 1996. With regard to the
training/other claims, the agency indicated that although it sent a letter
dated September 28, 1998, which was received by complainant on October
9, 1998, asking for clarifying information, including his untimely EEO
Counselor contact, within the 15-day time limit, he failed to provide
a response in a timely manner. The record indicates that complainant
responded to the agency's request by letter dated and postmarked October
23, 1998. The agency dismissed the training/other claims for failure
to cooperate and/or untimely EEO Counselor contact, based upon an EEO
contact date of August 11, 1997.
In his October 23, 1998 letter, complainant further clarified his
complaint by indicating that he was continuously denied reinstatement
to his former position as a Transfer Clerk position since 1994, and
he previously filed a grievance on February 2, 1996. Specifically,
complainant alleged that in the summer of 1997, he was not reinstated
to the position at issue, as was promised by the agency's Employee
Assistance Counselor. Complainant also alleged that he was continuously
denied training opportunities in and before 1996, and in 1997. The EEO
Counselor's Report indicates that complainant was recently denied
training opportunities in February, May, and September 1997. In the
letter, complainant also indicated that he was subjected to harassment
throughout the relevant period from agency managerial officials through
derogatory remarks, comments about his hygiene, and working conditions.
Complainant also asserted that he was not informed of job procedures.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(4)) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint where the complainant has raised the matter in a negotiated
grievance procedure that permits allegations of discrimination and
� 1614.301 indicates that the complainant has elected to pursue the
non-EEO process.
The record indicates that on February 2, 1996, complainant filed a
grievance involving the denial of reinstatement to the Transfer Clerk
position prior to filing the present complaint on January 5, 1998.
The record also indicates that under the labor - management agreement,
an agency employee may process his/her discrimination allegations either
through filing a grievance or filing a formal EEO complaint, but not both.
Thus, we find that complainant elected to pursue the grievance procedure
with regard to the denial of reinstatement to the position at issue
which occurred on or prior to February 2, 1996. We note, however,
that the complaint concerned not only the alleged incidents which
were raised in the grievance but also the incidents which allegedly
occurred thereafter, including the summer of 1997. Thus, we find that
the portions of the reassignment claim which occurred after February 2,
1996, but prior to the summer of 1997, were improperly dismissed by the
agency for raising the same matters in a grievance procedure since they
were new incidents that complainant did not raise in the February 2,
1996 grievance. Therefore, the agency's dismissal of the reassignment
claim which occurred from 1994, to February 2, 1996, was proper; but
its dismissal of the reassignment claim which occurred from February 2,
1996, to the summer of 1997, was improper.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(7)) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint where the agency has provided the complainant with a written
request to provide relevant information or otherwise proceed with the
complaint, and the complainant has failed to respond to the request within
15 days of its receipt or the complainant's response does not address
the agency's request, provided that the request included a notice of the
proposed dismissal. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available.
The record indicates that by letter dated September 28, 1998, the
agency requested that complainant clarify his complaint within 15 days.
Complainant received the agency letter on October 9, 1998. Although
the agency stated that complainant's response was not received until
October 27, 1998, the record clearly indicates that the response was
postmarked October 23, 1998, which was within the 15-day time limit.
See 29 C.F.R. �1614.604(b). Furthermore, we find that complainant's
response properly provided information further clarifying his complaint.
Thus, we find that the agency improperly dismissed the training claim
and the �other� claim for failure to cooperate.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. United
States Postal Service, EEOC Appeal No. 01890412 (April 6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary to
determine whether the acts are interrelated by a common nexus or theme.
See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 31, 1990). Should such a
nexus exist, complainant will have established a continuing violation
and the agency would be obligated to �overlook the untimeliness of the
complaint with respect to some of the acts� challenged by complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
It is well-settled that where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness."
Williams v. Department of Defense, EEOC Request No. 05920506 (August 25,
1992). As the Commission further held in Williams, where an agency's
final decision fails to address the issue of continuing violation,
the complaint �must be remanded for consideration of this question and
issuance of a new final agency decision making a specific determination
under the continuing violation theory.�
In the present case, the agency dismissed the training claim on the
alternative grounds that complainant's EEO Counselor on August 11, 1997,
was beyond the 45-day time limit set by the regulations. Upon review,
we find that complainant is clearly alleging a continuing violation
concerning the alleged discriminatory denial of training opportunities.
Specifically, complainant indicated that he was denied training
opportunities in or before 1996, and he was continuously denied until as
recently as September 1997. In addition, we note that although the agency
identified one of complainant's claims as �other,� it failed to specify
the detailed events thereof. After a review of complainant's complaint,
including his October 23, 1998 letter, it appears that �other� consisted
of harassment. Specifically, complainant alleged that he was subjected to
harassment from agency managerial officials through derogatory remarks,
comments about his hygiene, and working conditions throughout the time
of his other claims. Since the agency failed to address whether these
claims constitute a continuing violation, these matters must be remanded
back to the agency.
Based on the foregoing, the agency's final decision is hereby MODIFIED.
The agency's decision to dismiss the claims concerning the denial of
training opportunities and harassment is VACATED. These claims and
the claim concerning the denial of reassignment to the Transfer Clerk
position which occurred from February 2, 1996, to the summer of 1997,
are REMANDED to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
1. With regard to complainant's claim concerning the denial of training
opportunities and harassment, the agency, within thirty (30) calendar
days of the date this decision become final, is ORDERED to investigate
the issue of whether the claims constitute a continuing violation.
Based on the foregoing, the agency shall determine whether to process
these claims. Then, the agency shall issue a notice of what claims are
to be processed within the same thirty (30) calendar day period.
A copy of the notice of processing must be submitted to the Compliance
Officer, as referenced below.
2. The agency shall acknowledge to the complainant that it has received
the remanded claim concerning the denial of reassignment occurring after
February 2, 1996, to the summer of 1997, within thirty (30) calendar days
of the date this decision becomes final. The agency shall process the
reassignment claim, along with any claims accepted pursuant to provision
(1) above, 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).
A copy of the agency's letter of acknowledgment 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 (M1199)
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. � 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
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:
March 14, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.