01a00482
04-27-2000
Robert Finley, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Robert Finley, )
Complainant, )
)
v. ) Appeal No. 01A00482
) Agency No. 992067 & 993290
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 15,
1999, pertaining to his 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> Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts
the complainant's appeal from the agency's final decision in the
above-entitled matter.
ISSUE PRESENTED
The issue presented herein, is whether the agency properly dismissed
the present case, for failure to state a claim, failure to contact an
EEO Counselor, for raising matters previously raised before a negotiated
grievance and in a prior EEO complaint, and for claiming dissatisfaction
with the EEO process.
BACKGROUND
The record reflects that on June 4, 1999, complainant initiated contact
with an EEO Counselor. Subsequent to undergoing counseling, the EEO
Counselor issued a letter describing complainant's claims as follows:
1. On April 21, 1999, falsification of information occurred;
On May 5, 14, 1999, complainant was intimidated and coerced;
On April 2, 1999, complainant was subjected to an assignment of duties;
and
On May 6, 1999, complainant was terminated.
Counseling failed and on July 21, 1999, complainant filed a formal
complaint claiming that he was the victim of unlawful employment
discrimination of the bases of his race (African-American), gender (male)
and color (black). The agency defined complainant's claims as follows:
Assignment of duties: April 2, 1999;
Harassment - Falsification of Information: April 8, 1999, April 12,
1999, April 20, 1999 and April 21,1999 and Coercion and Intimidation:
April 12, 1999, May 3, 1999, May 4, 1999, May 5, 1999, May 6, 1999,
May 14, 1999 and June 15, 1999;
Termination /Removal: May 5, 1999;
Training: March 31, 1999 and April 1, 1999; and
Other: Previous and present counseling period, all Counselors assigned
to my case.
Thereafter, on September 15, 1999, the agency issued a decision dismissing
the above complaint.
ANALYSIS AND FINDINGS
Our review of the record reveals that the agency has failed to
sufficiently identify the precise claims involved in this complaint.
For example, complainant raised numerous allegations of harassment
taken against him as noted above. The agency has, however, simply
identified these incidents as � Falsification of Information and Coercion
and Intimidation� without further elaboration of the nature of the
incidents of harassment. The agency further defines other claims as:
assignment of duties; termination; training; and other (previous and
present counseling, all Counselors assigned to my case), again without
further elaboration of the nature of these incidents. Therefore, the
Commission finds that the agency did not clearly and precisely define
the allegations in complainant's formal complaint.
CONCLUSION
For the reasons set forth herein, the agency hereby VACATES the agency's
decision to dismiss the present complaint. Accordingly, the instant
complaint is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency is ORDERED to process complainant's complaint in accordance
with 29 C.F.R. Part 1614 and the provisions herein. Specifically, the
agency shall take the following actions:
1. The agency shall issue a final decision precisely defining the claims
in complainant's complaint. Such a final decision must explicitly define
all the allegations in the complaint and not simply identify incidents of
alleged harassment in a generalized fashion, i.e., stating complainant
alleged "Coercion and Intimidation." The agency shall not dismiss
allegations de facto by failing to define or to address allegations.
2. The agency shall notify complainant in writing of all claims, if any,
that it is accepting for investigation. If the agency dismisses any
claims, it must issue a final decision doing so. Such a final decision
must list all claims being dismissed, provide the grounds for dismissal,
and notify complainant of his appeal rights.
The agency shall complete all of the above actions within thirty (60)
calendar days of the date this decision becomes final. A copy of any
acceptance letter and/or final agency decision 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:
April 27, 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 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.