Michele M. Adams, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 2, 2000
01995219 (E.E.O.C. Feb. 2, 2000)

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).