01A33203_r
02-25-2004
Tangela Allen, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Tangela Allen v. Department of Veterans Affairs
01A33203
February 25, 2004
.
Tangela Allen,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33203
Agency No. 200L-0629-20021-2485
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated January 8, 2003, dismissing her complaint of
unlawful employment discrimination brought pursuant to Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. The Commission accepts the appeal. See 29 C.F.R. � 1614.405.
According to the record, complainant initiated EEO Counselor contact
on March 26, 2002, claiming discrimination on the bases of sex (female)
and in reprisal, as follows (herein referred to as �original complaint�):
Complainant's supervisor improperly denied her the opportunity for
overtime work on certain dates in February and March 2002; and
Complainant's supervisor improperly changed her work schedule from the
night shift to the day shift, effective April 9, 2002.
When counseling was unsuccessful, complainant was issued a Notice of
Right to File a Formal Complaint (NORFC), which she received on or about
April 29, 2002.
The record next reflects that complainant telephonically contacted
the EEO office on September 10, 2002, to check on the status of her
formal complaint. On October 1, 2002, the agency notified complainant
in writing that it had no record of her filing a formal complaint,
and requested that she provide written justification to explain why
she did not comply with the 15-day deadline referenced in the NORFC.
In correspondence dated October 16, 2002, complainant indicated that it
was her understanding that the EEO Counselor timely forwarded her case
to the formal stage, and that her complaint should be deemed timely.
Additionally, in correspondence dated October 15, 2002, complainant
indicated that she wished to amend her original complaint, to include
claims of harassment, reprisal, and sex discrimination. The amended
claims were as follows:
Her supervisor improperly denied her overtime on specified dates,
ranging from December 2001 to October 2002;
Her supervisor improperly denied her request for sick leave on February
5, 2002, and for annual leave on May 23, 2002 and May 26, 2002;
Her supervisor improperly assigned her to perform certain duties on 13
dates ranging from July 2001 to October 2002;
Her supervisor improperly denied her request for training on July
23, 2002;
She was subjected to harassment, in particular regarding an incident
on February 25, 2002 (meeting scheduled during off-hours) and in May
2002 (supervisor admonished complainant that she should be able to work
more independently).
In correspondence dated January 8, 2003, the same date as its final
decision, the agency acknowledged receipt of complainant's original
complaint, and designated September 10, 2002, as the filing date,
based on her telephonic inquiry. The agency's final decision further
provided complainant with notice that it accepted the claims raised in
her October 15, 2002 correspondence as amendments to her complaint.
Next, in adjudicating her claim, the agency dismissed the original
complaint. The agency found that complainant failed to timely file a
formal complaint. The agency then dismissed the amended claims, finding
that complainant failed to bring these matters to the attention of an EEO
Counselor. However, notwithstanding its dismissal of the amended claims,
the agency notified complainant that she had 15 days to contact an EEO
Counselor regarding these claims, and that September 10, 2002, would
be designated as the date of initial EEO Counselor contact. However,
the agency then dismissed the complaint in its �entirety,� presumably
meaning both the original and amended claims, because it was received 133
days after her receipt of the Notice of Right to File a Formal Complaint.
Complainant now appeals this determination. In response, the agency
asks the Commission to affirm its final decision.
Original Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so.
Here, as an initial matter, we find that notwithstanding the agency's
January 8, 2003 notice of receipt of complainant's formal complaint,
the record does not reflect a copy of a written complaint statement, as
required by 29 C.F.R. � 1614.106(c). Moreover, we find that complainant
received the NORFC on or about April 29, 2002, which informed her of
the 15-day time limit for filing a formal complaint, as well as a letter
from the EEO Counselor dated April 25, 2002, which, in pertinent part,
informed complainant that if she decided to file a formal complaint,
she must do so within 15 days.
Complainant maintains that she did not file a formal complaint because
it was her understanding that the EEO Counselor was transferring the
case to the formal stage. However, given that complainant was twice
notified about the need to separately file a formal complaint, as well
as the 15-day time limit for doing so, we find that she should have
realized that she could not file a formal complaint simply by asking the
EEO Counselor to forward her case to the formal stage. We note that
there is no indication that the EEO Counselor misled complainant into
believing that she would file the complaint on her behalf. We also find
that complainant provides no explanation regarding her approximately
4-month delay in contacting the EEO office to inquire about the status
of her complaint. Therefore, we find that the agency properly dismissed
the original claims on the grounds of untimely filing, and we AFFIRM
this determination.
Amended Claims
Here, we find that the agency properly dismissed these claims. As
discussed above, the original complaint was filed, without justification,
more than 15 days after complainant's receipt of the NORFC. Therefore,
this complaint is deemed �faulty� or not a valid/timely complaint, and
consequently, complainant cannot amend it. See Barnes v. Department
of Veterans Affairs, EEOC Appeal No. 01A20491 (January 10, 2003).
Additionally, we concur with the agency that these claims may also be
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), because the record
shows that complainant did not contact an EEO Counselor.
In conclusion, for the reasons set forth above, we AFFIRM the agency's
decision dismissing the captioned complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 25, 2004
__________________
Date