Susan Y. Ellis, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 1, 2000
01992381 (E.E.O.C. Mar. 1, 2000)

01992381

03-01-2000

Susan Y. Ellis, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Susan Y. Ellis, )

Complainant, )

)

v. ) Appeal No. 01992381

) Agency No. 1-98-1110

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning 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> The final agency decision

was issued on January 13, 1999. The appeal was postmarked January 26,

1999. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),

and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. �1614.405).

ISSUES PRESENTED

1. The first issue on appeal is whether the agency properly dismissed

claims 1, 2, 4, 5, 6, and 7 of the complaint on the grounds that these

matters were not brought to the attention of an EEO Counselor and they

are not like or related to a matter that has been brought to the attention

of an EEO Counselor.

2. The second issue on appeal is whether the agency properly dismissed

claim 3 of the complaint on the grounds that complainant failed to file

her formal EEO complaint in a timely manner.

BACKGROUND

According to the EEO Counselor's report, complainant initiated contact

with an EEO Counselor on January 29, 1998. In a formal EEO complaint

dated August 12, 1998, complainant claimed that she was discriminated

against on the bases of her race (white), sex (female), and mental

disability (psychological condition) when:

1. She was denied various requests for annual leave from October 8,

1997 to December 27, 1997.

2. She did not receive on-the-job training for approximately six weeks

after certifying on Ground Control.

3. An agency official in Arizona changed his mind about accepting her

as a transfer once he received negative information about her from a

management official in New Jersey.

4. She received a memo from her Manager stating that he was denying

her request for advance sick leave.

5. After she was deemed medically disqualified as a controller,

management made no effort to offer her an alternate assignment, while a

coworker who had been medically disqualified was assigned to a temporary

staff position.

6. Her request for a transfer was denied.

7. In June 1998, she was informed by her Manager that she had been

listed as absent without leave instead of approved leave without pay.

In its final decision, the agency dismissed claims 1, 2, 4, 5, 6, and

7 on the grounds that these claims raise matters that were not brought

to the attention of an EEO Counselor and they are not like or related

to a matter that has been brought to the attention of an EEO Counselor.

The agency determined based upon the record and in additional discussions

with the EEO Counselor that there is no indication that complainant

raised these issues during her counseling session. The agency dismissed

claim 3 on the grounds that complainant failed to file her formal EEO

complaint in a timely manner. According to the agency, complainant

received her notice of right to file a discrimination complaint on July

24, 1998, but did not file her formal complaint until August 14, 1998.

The agency determined that the notice stated that complainant had to

file her complaint within fifteen days of her receipt of the notice.

Further, the agency stated that complainant should have been familiar

with the complaint process and the applicable time limits given that

she has filed three other complaints.

On appeal, complainant argues that with regard to the notice of right to

file a formal complaint, all she received from the agency was the second

page of the form which contained a signature space for acknowledgment of

receipt. According to complainant, there were no instructions enclosed

with regard to filing a formal complaint. Complainant claims that she

signed the acknowledgment page and returned it to the EEO Counselor.

Complainant states that she assumed the EEO Counselor would then send

her the notice of final interview and the appropriate forms for filing a

formal complaint. We note that the page contained in the record which

is signed by complainant on July 24, 1998, merely indicates that if

complainant retained an attorney, she would notify the agency's Civil

Rights Manager, and questions whether complainant has filed a grievance or

MSPB appeal; this page contains no page numbering or other indication that

it is but one page of a multi-page document or otherwise was submitted

to complainant along with the notice of final interview.

With regard to the other claims that were dismissed, complainant

maintains that she raised these issues with an EEO official in a

letter dated January 20, 1998, and that the EEO Counselor had a copy.

Complainant contends that the EEO Counselor informed her that he had a

copy of all of her claims and that he read the beginning of the claims

to make sure he had the correct letter. In support of her appeal,

complainant submits a copy of the letter dated January 20, 1998.

This letter contains a discussion of the issues that were included in

the formal complaint as claims 1, 2, 3, and 4.

In response, the agency reiterates that the formal complaint was

not filed until August 14, 1998, despite the fact that complainant

received the notice of right to file a formal complaint on July 24, 1998.

The agency maintains that the notice clearly stated the time limitations.

The agency also asserts that the only issue raised with the EEO Counselor

was that set forth in claim 3.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a

written complaint with an appropriate agency official within fifteen

(15) calendar days after the date of receipt of the notice of the right

to file a formal complaint.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall

dismiss a complaint that fails to comply with the applicable time limits

contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency

extends the time limits in accordance with � 1614.604(c).

The agency asserts that complainant received a notice of the right to

file a formal discrimination complaint on July 24, 1998. Complainant

maintains that she only received the acknowledgment page and that she did

not receive instructions. Complainant stated that after she returned the

acknowledgment page to the EEO Counselor, she assumed the EEO Counselor

would then send her the notice of final interview and the appropriate

forms for filing a formal complaint. We find that the agency failed

to proffer any evidence to show that complainant received the notice of

right to file a formal complaint along with the identified page dated July

24, 1998. The agency has the burden of providing evidence and/or proof

to support its final decisions. Ericson v. Department of the Army, EEOC

Request No. 05920623 (January 14, 1993); Gens v. Department of Defense,

EEOC Request No. 05910837 (January 31, 1992). Complainant's argument that

she did not receive a complete notice of right to file a formal complaint

has not been rebutted by the agency. Accordingly, the agency's dismissal

of claim 3 of the complaint on the grounds of untimeliness was improper

and is REVERSED. This claim is hereby REMANDED for further processing

pursuant to the ORDER below.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an

agency shall dismiss a complaint which raises a matter that has not been

brought to the attention of an EEO Counselor, and is not like or related

to a matter on which the complainant has received counseling. A later

claim or complaint is "like or related" to the original complaint if the

later claim or complaint adds to or clarifies the original complaint and

could have reasonably been expected to grow out of the original complaint

during the investigation. See Scher v. United States Postal Service,

EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal

Service, EEOC Request No. 05891068 (March 8, 1990).

The record contains a letter dated January 20, 1998, from complainant to

an EEO official wherein complainant raised the issues that were later

defined in the formal complaint as claims 1, 2, 3, and 4. The agency

has not refuted complainant's position that the EEO Counselor had a

copy of this letter. We find that the EEO Counselor was placed on

notice that complainant was raising these matters. We note that claim

7 relates to an issue involving leave and attendance that occurred

approximately five months after complainant's January letter. In light

of the fact that both claims 1 and 4 also concern leave, we find that

claim 7 is sufficiently related to the matters raised in those claims.

Furthermore, we note that claim 6 involves the denial of complainant's

request for a transfer, which appears to be like or related to claim 3,

which involves the agency official in Arizona changing his mind about

accepting complainant as a transfer. Accordingly, the agency's dismissal

of claims 1, 2, 4, 6, and 7 was improper and is REVERSED. These claims

are hereby Remanded for further processing pursuant to the ORDER below.

As for claim 5, we note that this matter concerns complainant being deemed

medically disqualified as a controller and management making no effort

to offer her an alternate assignment. We find that this claim was not

raised prior to the filing of the formal complaint and is not sufficiently

related to the other matters raised in the complaint. Accordingly,

the agency's dismissal of claim 5 was proper and is AFFIRMED.

CONCLUSION

The agency's dismissal of claim 5 is hereby AFFIRMED. The agency's

dismissal of claims 1-4, 6 and 7 is hereby REVERSED. These claims are

hereby REMANDED for further processing pursuant to the ORDER below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims (1-4 and 7) 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

(1-4 and 7) 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 an

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 (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

(T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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:

March 1, 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 Assistant1On 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.