01a04543
01-04-2001
Ora Allen, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Ora Allen v. Department of Veterans Affairs
01A04543
January 4, 2001
.
Ora Allen,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04543
Agency No. 2003697
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated May 19, 2000 dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq.<1> In her complaint, complainant alleged that she was subjected to
discrimination on the basis of race (Black) and retaliated against due
to her prior EEO activity (unspecified) when she was denied a voluntary
separation incentive and a buyout on December 19, 1999.
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(2), for failure to contact an EEO Counselor within
the required 45-day time period. The agency found that complainant did
not initiate EEO Counselor contact until February 16, 2000, almost 60
days after the event at issue.
On appeal, complainant contends that she initiated contact with an EEO
Counselor in a timely manner when, on December 21, 1999, she called the
Office of Resolution Management (ORM) to file a complaint. Complainant
alleges that she was told that she would receive a call when an EEO
Counselor was assigned. She argues that she then received a call from a
Counselor on February 16, 2000, and that the agency subsequently relied
on the date of this call to find her EEO contact untimely. In support
of this contention, complainant submits a March 13, 2000 Notice of
Right to File a Discrimination Complaint which she received from ORM.
This Notice lists December 21, 1999 as the date complainant initiated
contact with the EEO Counselor.
In response, the agency contends that ORM reviewed its 1999 logs and found
no evidence of contact made by complainant in December 1999. The agency
argues that the Notice of Right to File a Discrimination Complaint
relied on by complainant was an incorrect draft and that the other copy
of the Notice, listing February 16, 2000 as the initial contact date,
is the official notice. The agency argues that the Notice complainant
cites was not signed by the Counselor or complainant, whereas the Notice
listing February 16, 2000 as the contact date was signed. Finally, the
agency argues that the documents in the complaint file support the fact
that February 16, 2000 was the date of complainant's initial contact.
ANALYSIS AND FINDINGS
We have consistently held that the agency bears the burden of
obtaining sufficient information to support a reasoned determination
as to timeliness. See Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992); Gens v. Department of Defense, EEOC
Request No. 05910837 (January 31, 1992). After a careful review of the
record in the case at hand, we find that the agency did not meet this
burden. Although the agency alleges that the Notice of Right to File a
Discrimination Complaint which bears the December 21, 1999 date was an
incorrect draft, it provides no explanation for why it would have given
such a draft to complainant. Because of the existence of this document
which was created by the agency and which supports complainant's version
of events, we find that complainant initiated EEO contact in a timely
manner, on December 21, 1999. The FAD is therefore REVERSED and this
matter is REMANDED to the agency for further processing.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 4, 2001
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.