Vicki M. Solomon, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 28, 2000
01995772 (E.E.O.C. Jul. 28, 2000)

01995772

07-28-2000

Vicki M. Solomon, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Vicki M. Solomon v. Department of Veterans Affairs

01995772

July 28, 2000

.

Vicki M. Solomon,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01995772

Agency No. 991377

DECISION

Vicki M. Solomon (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated June 28, 1999 dismissing

her complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42

U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> In her

complaint, complainant alleged that she was subjected to discrimination

and harassment on the bases of sex (female), disability (not recorded)

and reprisal (prior EEO activity) when an agency representative withheld

her final paycheck after wrongfully terminating her for her whistle

blowing and EEO activities.

The agency dismissed the complaint pursuant to EEOC Regulation 64

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

to as 29 C.F.R. � 1614.107(a)(2)), noting that complainant failed to

initiate contact with an EEO Counselor within the required time period.

Specifically, the agency concluded that complainant was aware of the

alleged pay discrepancies as early as July 1997, but did not contact an

EEO counselor until March 10, 1999.

On appeal, complainant contends that she complied with the EEO

regulations. She argues that she always felt that she was owed a final

paycheck, but was told by all authorities that she was not. She argues

that she received incorrect legal advice from her attorney who told her

that her final paycheck concerns would be addressed in her appeal to the

Merit Systems Protection Board (MSPB) regarding her removal for allegedly

discriminatory reasons. She includes with her appeal statement, an order

from the MSPB in which the MSPB Administrative Judge (AJ) determined

that the �last pay check� issue was outside the MSPB's jurisdiction and

that it would be excluded from the MSPB hearing. Complainant argues

she did not know what to do after this and that it was not until her

current lawyer reviewed her papers that her belief that she was owed

money was confirmed. After receiving this confirmation, and on the

advice of her current attorney, complaint initiated EEO counseling.

In response, the agency notes that complainant does not contend that

she was unaware of the time limit for initiating contact with an EEO

counselor and that she admits that she was aware of the alleged paycheck

discrepancies in July 1997. The agency asks that its dismissal therefore

be affirmed.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints

of discrimination 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). "The time

period is triggered as soon as a complainant suspects discrimination

and the complainant may not wait until all supporting facts have become

apparent." Whalen v. Department of Justice, EEOC Request No. 05960147

(September 18, 1997).

In the case at hand, the record supports the agency's conclusion that

complainant suspected that the agency's alleged failure to issue her a

final paycheck was motivated by discrimination in July 1997.

A review of the record reveals, however, that complainant filed an

appeal with the MSPB after her July 1997 termination and attempted

to raise the final paycheck issue in that appeal. The MSPB refused to

consider the paycheck issue, noting that it lacked jurisdiction to do so.

EEOC Regulation 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.302(b)) states that the date

on which a person files a mixed case appeal with the MSPB shall be deemed

to be the date of initial contact with the counselor, should that appeal

be dismissed for jurisdictional reasons. See also Bell v. Department

of Defense, EEOC Request No. 05940741 (June 6, 1995).

Although the exact date of the filing of the MSPB appeal is not noted in

the record, complainant was terminated in July 1997 and timely filed an

MSPB appeal, in which it appears that she raised the final paycheck issue.

As the date on which she filed her appeal with the MSPB is deemed to be

the date of initial contact with the EEO counselor, it appears that her

counselor contact may have been within the required 45-day period.

We have consistently held that the agency 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); Gens v. Department of Defense, EEOC

Request No. 05910837 (January 31, 1992). In this case, the agency did not

respond to complainant's contentions that she raised the final paycheck

issue in her MSPB appeal in July 1997, an argument which suggests that

complainant timely initiated EEO contact. Accordingly, we find that

the agency has failed to obtain sufficient information to support its

dismissal for untimely counselor contact.

Therefore, the agency's dismissal of the complaint was improper and the

FAD is hereby REVERSED and REMANDED in accordance with this decision

and the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claim 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 claim 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

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:

_______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

July 28, 2000

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.