Sharon Montgomery, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01a01131 (E.E.O.C. Jul. 12, 2000)

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.