Willis E. Cattron, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01992524 (E.E.O.C. Mar. 24, 2000)

01992524

03-24-2000

Willis E. Cattron, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Willis E. Cattron, )

Complainant, )

)

v. ) Appeal No. 01992524

) Agency No. 98-3916

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

The Commission finds that the agency's January 26, 1999 decision

dismissing complainant's complaint is not proper.<1>

The record shows that complainant sought EEO counseling on October 14,

1998, alleging that he had been discriminated against on the basis of

physical disability (on-the-job back injury) when on June 9, 1998, he was

issued a letter of proposed removal. Complainant further alleged that

the agency should accommodate his disability. During the inquiry of his

informal complaint, complainant explained that he had not contacted an

EEO counselor within 45 days of the incident in question because �he did

not know what to do�. Complainant also alleged that he could not believe

that the agency would try to fire him after he was injured on the job.

Complainant subsequently filed a formal complaint of discrimination

in which he only raised the issues of assignment of duties and working

conditions. No reference was made to the proposed removal. By letter

dated December 30, 1998, the agency requested complainant to explain

why he had not complied with the 45-day time limit. Complainant was

advised that failure to comply with the agency's written request for

information could result in the dismissal of the complaint.

On January 26, 1999, the agency issued a final decision. Therein,

the agency determined that complainant's complaint was confined solely

to the issue of a proposed removal dated June 6, 1998, and that the

proposed removal was deemed a form of harassment. The agency dismissed

the complaint on the grounds of untimely EEO counselor contact and for

failure to prosecute, finding that complainant did not comply with the

agency's request for additional information. The agency noted that

complainant's initial EEO counselor contact on October 14, 1998, �was

more than 45-calendar days after the event alleged to be discriminatory�.

The agency further noted that complainant's �verbal response on January

26, 1999, to the additional information letter request did not clarify

why� he was untimely in contacting an EEO counselor.

On appeal, complainant contends that he was unaware of the 45-day time

limit provided by EEOC Regulations.

A review of the record shows that although on June 6, 1998, complainant

had been informed that he would be removed from service, he did not seek

EEO counseling until October 14, 1998, beyond the 45-day time limit.

To explain his delay in seeking counseling complainant alleged that he

did not believe that the agency would really remove him after suffering

an on-the-job injury and that he was unaware of his EEO rights.

Upon review of the record, the Commission determines that the

agency failed to sufficiently identify the precise claims involved

in this complaint. A review of the record shows that in his informal

complaint, complainant raised the issues of the proposed removal and the

accommodation of his disability. Nevertheless, in his formal complaint,

no reference was made to his removal from service. Instead, complainant

raised the issues of assignment of duties and working conditions, and

requested reasonable accommodation for his disability. We are unable

to ascertain from the present record whether complainant's complaint

was confined solely to the issue of a June

9, 1998 proposed removal, as identified by the agency in its final

decision; or alternatively, whether the issues of the agency's purported

refusal to accommodate complainant and his working conditions are also

part of the complaint. The agency assumed that the complaint only

raised the issue of the proposed removal. However, given the present

record, we find that this matter is unclear. Under these circumstances,

the agency's decision to dismiss complainant's complaint for failure to

timely contact an EEO Counselor and for failure to prosecute is VACATED.

Complainant's complaint is REMANDED to the agency for further processing

in accordance with the ORDER below.

Finally, complainant is advised to cooperate with the agency in

ascertaining the matters raised in his formal complaint upon remand.

ORDER

The agency is ORDERED to process complainant's complaint in accordance

with 29 C.F.R. Part 1614 and the provisions therein. Specifically,

the agency shall include the following actions:

1. The agency shall conduct a supplemental investigation to ascertain

precisely what claims were raised in the instant complaint, i.e., whether

the complaint is solely confined to the issue of a proposed removal, or

encompasses other claims, such as failure to accommodate a disability

and/or improper working conditions/assignment of duties. Thereafter,

the agency shall issue a final decision precisely defining the claims in

complainant's complaint. Such a final decision must explicitly define

all the claims in the complaint. The agency shall not dismiss claims

de facto by failing to define or to address claims.

2. The agency shall notify complainant in writing of all claims, if any,

that it is accepting for investigation. If the agency dismisses any

claims, it must issue a final decision doing so. Such a final decision

must list all claims being dismissed, provide the grounds for dismissal,

and notify complainant of his appeal rights.

3. The agency shall conduct a supplemental investigation to ascertain

whether complainant had been informed of the necessity for initiating

contact with an EEO Counselor and the time limits for doing so, and

when complainant had been so informed. The agency's supplemental

investigation shall include the specific documentation, if available,

which explicitly delineated the limitation period for contacting an EEO

Counselor, as well as any statement from agency officials who addressed

this issue with complainant.

The agency shall complete all of the above actions within thirty (30)

calendar days of the date this decision becomes final. A copy of any

acceptance letter and/or final agency decision 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).

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:

March 24, 2000

DATE Carlton M. Hadden,

Acting Director

Office of Federal

Operations

CERTIFICATION 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

ASSISTANT1 On 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.