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.