01995219
02-02-2000
Michele M. Adams, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Michele M. Adams, )
Complainant, )
)
v. ) Appeal No. 01995219
) Agency No. 99-1323
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On June 11, 1999, complainant filed an appeal with this Commission
from a final agency decision (FAD) dated May 7, 1999, 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.<1> The Commission accepts her appeal as timely, pursuant to EEOC
Order No. 960, as amended.<2> In her complaint, complainant alleged
that she was subjected to discrimination in reprisal for prior EEO
activity when her supervisor refused to consider her proposed return to
the Engineering Office.
The agency dismissed the complaint for stating the same claim raised in
a prior complaint, filed June 16, 1998, and currently pending before an
EEOC Administrative Judge. Specifically, the agency found that the prior
complaint concerned complainant being moved from the Engineering Office,
and the current complaint regarding her proposed return to the Engineering
Office involved the same harm, same possible remedy, and same officials.
On appeal, complainant argues that the present complaint is not a
duplication of her prior filings. Complainant admits that the relief
sought is similar, but notes that the supervisor's denial of her return
to the Engineering Office occurred seven months after her reassignment
out of the office. Complainant argues that her supervisor admitted that
complainant should have more access to the Engineering Office, but then
changed his mind after she submitted a proposal for her return.
The record includes the Investigative Report for Agency No. 98-1672,
filed June 16, 1998. This prior complaint concerned the supervisor moving
complainant out of the Engineering Building in June 1998, instructing
her to discuss engineering issues only with her, assigning her duties
that avoid any interaction with engineering employees, and directing
complainant to provide daily e-mail reports.
The record also contains the Counselor's Report for the present complaint,
dated April 20, 1999. Therein, complainant explained that she and her
union representative met with the supervisor to discuss her lack of
access to the Engineering Building. According to the EEO Counselor,
the supervisor suggested that complainant provide a proposal for
the circumstances under which she should be allowed to return to the
Engineering Building. Complainant submitted a proposal, dated January
6, 1999 (copy attached to the Counselor's Report). The supervisor then
denied complainant's proposal in January 1999.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that an agency may dismiss
a matter that is pending before or has been decided by the agency
or Commission. The Commission has held that the complaint must set
forth matters identical to the prior complaint in order for dismissal
to be warranted. See Scott v. Department of the Interior, EEOC Request
No. 05970038 (April 14, 1999). The Commission has consistently held that
in order for a complaint to be dismissed as identical, the elements of
the complaint must be identical to the elements of the prior complaint
in time, place, incident, and parties. See Jackson v. Department of
the Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other
grounds EEOC Request No. 05960524 (April 24, 1997).
Although the present complaint involves a situation similar to that
raised in Agency No. 98-1672, it is not identical. The present complaint
involves a different incident -- the denial of complainant's proposal
-- that occurred at a different time -- January 1999 (not June 1998).
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for processing as provided herein.
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 (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). 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:
February 2, 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.
2The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date complainant
received the agency's dismissal. Accordingly, since the agency failed
to submit evidence of the date of receipt, the Commission presumes that
complainant's appeal was filed within thirty (30) days of receipt of
the agency's dismissal. See, 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.402).