01994206
03-23-2000
Julie A. Angeloni, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Julie A. Angeloni, )
Complainant, )
)
v. )
) Appeal No. 01994206
Togo D. West, Jr., ) Agency No. 98-2614
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On April 26, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> The Commission accepts the appeal in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on sex and age. Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, on March 25, 1998, she filed a formal
complaint.
The agency framed complainant's claims as follows:
1. In early 1997, complainant alleged harassment when:
a) The Chief, Social Work Service, asked if she would like to transfer
to the Santa Rosa Clinic;
b) The Assistant Chief, Social Work Service, bragged to some of the
employees that complainant supervised, that she and the
Supervisor of Medical Surgical Section, had come into complainant's
office on a Saturday and looked through all
of her belongs, desk drawers, files, etc;
c) The Chief gave reports due in Washington, D.C. to the Assistant Chief
that complainant did not receive until after the due date;
d) It was difficult for her to meet with the Chief alone or with him
and the Assistant Chief to discuss any problems;
e) The Chief began to question complainant's loyalty to him;
f) The Chief began to make negative remarks about complainant on a
personal level to her and those that complainant supervised;
2. On September 30, 1997, complainant alleged harassment when the Chief
and Assistant Chief told complainant that they wanted to talk with her
about her work assignment as they did not think that she should supervise
the CWT Program any longer; and,
3. Complainant alleged a hostile environment on November 28, 1997 when
the Chief responded via e-mail that he could not give complainant the
buyout.
On March 29, 1999, the agency issued a FAD dismissing the complaint for
untimely counselor contact. Specifically, the FAD indicated that, with
regard to claims 1 and 2, complainant failed to provide an explanation
for her late contact. With respect to claim 3, complainant indicated
that she became aware of the buyout denial on November 28, 1997 and
contacted the EEO office on December 1, 1997. Citing an affidavit by
the EEO Program Manager, the agency agreed that during the December
1, 1997 meeting complainant discussed the buyout issue. However,
complainant was unsure of a basis and did not request a counselor.
Complainant was provided with information regarding the EEO process,
but it was not until February 11, 1998 that she requested counseling.
On appeal, complainant reiterates her various attempts to resolve the
situation, from contacting Personnel Services in October 1997 to deciding
in February 1998 to file an EEO complaint. According to complainant, the
agency tried several times to dissuade her from filing a discrimination
complaint and she �only waited to file because [she] had been repeatedly
told to first file a grievance and then an EEO complaint.� Moreover,
she believed the forty-five day time limit began to run from the date
she retired, as she was purportedly informed by an agency EEO official.
In response, the agency argues that complainant received training on
EEO matters, and
therefore should have been aware of the forty-five day time limitation.
Further, the EEO
Program Manager attests that complainant was provided with information
regarding the EEO process.
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 Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, the agency dismissed the complaint based upon
complainant's February 11, 1998 counselor contact. A review of the
record reveals, however, that complainant contacted the counselor on
December 1, 1997. The EEO Program Manager's affidavit indicates that
on December 1, 1997 complainant discussed several problems with her,
including claims 2 and 3. The agency argues that complainant was unsure
of the basis of her claims and whether she should file a grievance.
The EEOC Management Directive 110 (Nov. 9, 1999) instructs counselors to
assist complainants in clearly defining their claims and determine the
bases of the aggrieved person's problem. See MD-110 at 2-9. Moreover,
�[u]nder no circumstance should the Counselor attempt to dissuade a
person from filing a complaint.� Id. Therefore, we are not persuaded
by the agency's contentions that complainant did not make contact until
February 11, 1998, when she decided to file a formal EEO complaint.
Moreover, the agency contends that complainant was aware of the EEO time
limitations based on training courses which included information on the
EEO process. Although the record contains a list of courses attended by
complainant (i.e. �EEO is Effective Management� and �Sexual Harassment�),
the agency did not provide evidence regarding the information presented,
particularly the time for contacting an EEO Counselor. In the absence
of this evidence, we find that the record is insufficient to impute
complainant with constructive knowledge of the time limitations. Clearly,
it is the burden of the agency to have evidence or proof to support its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Therefore, the agency failed to
establish that complainant had actual or constructive knowledge of the
time limitation for contacting an EEO Counselor.
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 (E1199)
The agency is ORDERED to process the remanded claims 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). 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 an
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 (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 (M0300)
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. 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 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
(R1199)
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:
March 23, 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.