01a01131
07-12-2000
Sharon Montgomery, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sharon Montgomery v. Department of Veterans Affairs
01A01131
July 12, 2000
Sharon Montgomery, )
Complainant, )
)
v. ) Appeal No. 01A01131
) Agency No. 99-5274
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO contact.<1>
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.105(a)(1)) requires that
complaints of discrimination should be brought to the attention of the EEO
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. 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.
The record discloses that the alleged discriminatory event occurred on
February 12, 1999<2>, but that the agency determined that complainant's
initial EEO Counselor contact did not occur until May 3, 1999, beyond
the forty-five (45) day limitation period. However, the record indicates
that initially, complainant was contacted by an EEO Counselor on February
17, 1999, because she had been named as a witness in another unrelated
EEO complaint. The record indicates further that on February 17,
1999, complainant indicated that she too sought counseling regarding
her February 12, 1999 termination from the agency. The record also
indicates that on February 18, 1999, complainant received counseling
concerning her claims of discrimination. The record indicates that a
notice of her right to file a formal complaint was mailed via certified
mail to complainant's address of record on March 31, 1999, however
the copy of the postal receipt provided by the agency does not contain
complainant's signature, nor does it indicate a date of complainant's
receipt of the notice. On appeal, complainant maintains that she never
received the agency's notice.
The record indicates that on May 3, 1999, complainant again spoke with
an EEO Counselor regarding her February 12, 1999 termination from
the agency and eventually filed a formal complaint on July 1, 1999.
The record indicates further that on October 7, 1999, the agency requested
that complainant provide an explanation for her failure to contact
an EEO Counselor within 45 days of the alleged discriminatory event.
In complainant's October 19, 1999 response to the agency, complainant
stated that following her termination, she initially attempted to get
recourse from her union; that she thereafter contacted an EEO Counselor.
Complainant explained that a co-worker had contacted a named EEO Counselor
prior to complainant's own attempts to seek EEO counseling; and that
the named EEO Counselor informed complainant that she could only do �one
claim at a time.� Complainant stated that she was thereafter referred
to another EEO Counselor on May 3, 1999, and ultimately file her formal
complaint on July 1, 1999.
Upon review of the record herein, including complainant's October 19,
1999 response to the agency's request for information, we find that
there is sufficient justification to extend complainant's time for
seeking counseling and filing her formal complaint. It appears from a
review of the record that there was sufficient confusion by complainant
concerning the status and processing of the instant complaint. Moreover,
the Commission has held that where there is an issue of untimeliness,
the agency always 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).
We find that the agency has not met it's burden concerning the issue of
untimeliness. In that regard, the agency's dismissal of complainant's
complaint for untimely Counselor contact is REVERSED. The complaint
is REMANDED to the agency for processing in accordance with applicable
regulations.
ORDER (E0400)
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 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 (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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 12, 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.
2Complainant also alleges discrimination regarding an admonishment she
received on January 31, 1999 and harassment she was subjected to from
October 1998 leading up to her termination on February 12, 1999.