01985652
01-18-2000
Susan Dylewski, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Susan Dylewski, )
Complainant, )
)
v. ) Appeal No. 01985652
Togo D. West, Jr., ) Agency No. 980309
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On July 9, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on June 15, 1998,
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. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of physical
disability (diabetes, partial blindness, heart disease, and neuropathy)
and in reprisal for prior EEO activity when since October 1995 through
July 1, 1997, the Chief of Health Information Services (CHIS) subjected
her to ongoing harassment with regard to the following incidents:
Complainant was called into the CHIS' office on a weekly basis and kept
there for up to one and one half hours and told that she had to speak
with the CHIS since she was complainant's supervisor;
In October 1996, and several times thereafter, the CHIS stated
complainant was making up a chest pain to get attention;
In November 1996, the CHIS �jumped on� complainant for leaving the
office unattended. The same afternoon of this incident, she gave
complainant a verbal counseling;
In December 1996, although complainant had moved to another area, the
CHIS continued to come to complainant's office three to four times a
day for no apparent reason;
In February 1997, the CHIS gave complainant's co-worker an award but
did not give an award to complainant;
On July 1, 1997, the CHIS grabbed complainant's arm and pushed
complainant aside.
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.105(a)(1), for untimely EEO Counselor contact. Specifically,
the agency noted that the last incident of discrimination occurred on
July 1, 1997, and complainant did not contact an EEO Counselor until
September 3, 1997, sixty-four days after the date of the last alleged
discriminatory action. In an October 6, 1997 report of contact, the EEO
Counselor documented that complainant stated that she was aware of the
time limits for filing an EEO complaint. In addition, the agency relied
on the sexual harassment training complainant attended on November 14,
1996, and the EEO poster in complainant's working area as evidence that
complainant was aware of the time limits for filing an EEO complaint.
The agency noted that when asked about her delay in initiating EEO
contact, complainant indicated that she filed a grievance on the same
issues, but it was taking too long to be resolved. Thus, the agency
found that complainant was aware of the time limit for contacting an EEO
Counselor and therefore dismissed her complaint for failing to timely
initiate contact with an EEO Counselor.
On appeal, complainant claims that on July 8, 1997, she met with an
individual who was both the EEO Officer and the Medical Center Director
to discuss the July 1 incident. Thus, complainant claims that she timely
reported the incident to the EEO Officer at the facility and was never
told to see an EEO Counselor to initiate the process. Complainant later
contacted an EEO Counselor on September 3, 1997. Complainant states
that she was not aware of the time frame involved in processing an
EEO complaint. Complainant states that the only EEO posting at the
facility is located in the basement, which is not near her work area.
In addition, complainant contends that the sexual harassment training
she attended in November 1996, was inadequate to put her on notice
for the EEO discrimination complaint she was filing, since it did not
involve a claim of sexual harassment.
The record contains evidence of complainant's July 8, 1997 contact
with the Medical Center Director (EEO Officer), in the form of an
Administrative Board of Investigation report. According to the final
report of the Administrative Board of Investigation, the Board was
convened on July 11, 1997, in response to complainant's contact with
the Medical Center Director. The report states that although incidental
issues were raised in the process of interviewing witnesses to the July
1, 1997 incident, the scope of the Administrative Board's investigation
was limited to the July 1, 1997 incident which resulted in an allegation
of assault by complainant against her supervisor. The report does not
mention whether complainant raised an allegation of discrimination at
that time.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
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.
With regard to complainant's contention that she initiated contact with
an EEO Counselor on July 8, 1997, regarding the July 1, 1997 incident,
we note that the Commission has previously held that for purposes of
satisfying the criterion of counselor contact, a complainant need only
contact an agency official who is logically connected to the EEO process
and exhibit an intent to pursue her EEO rights. Snyder v. Department of
Defense, EEOC Request No. 05901061 (November 1, 1990). In the present
case, complainant contacted the Medical Center Director (EEO Officer),
a person who can be considered logically connected to the EEO process
in order to complain of the treatment she had received on July 1st
by her supervisor. We note, however, as indicated above, that there
is no evidence of record whether complainant raised allegations of
discrimination with the Medical Center Director (EEO Officer), i.e.,
exhibited an intent to pursue her EEO rights.
For the foregoing reasons, the Commission hereby VACATES the final agency
decision that the complainant failed to initiate timely EEO Counselor
contact and REMANDS this matter for further processing in accordance
with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to take the following actions:
Conduct a supplemental investigation regarding complainant's July 8,
1998 contact with the Medical Center Director (EEO Officer). The agency
shall obtain a statement from the Medical Center Director (EEO Officer)
regarding the July 8th contact indicating whether complainant raised an
allegation of discrimination and/or exhibited an intent to pursue her
EEO rights; a statement from complainant regarding her contact with the
Medical Center Director (EEO Officer) indicating whether she raised an
allegation of discrimination and/or exhibited an intent to pursue her EEO
rights; and any other relevant evidence regarding the July 8, 1998 contact
between complainant and the Medical Center Director (EEO Officer).
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue a new final agency decision or notify
complainant of the claims to be processed.
A copy of the agency's new final decision or notice of the claims to be
processed 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:
January 18, 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.