Yvonne T. Smith, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 15, 1999
05970653 (E.E.O.C. Jan. 15, 1999)

05970653

01-15-1999

Yvonne T. Smith, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Yvonne T. Smith v. Department of Veterans Affairs

05970653

January 15, 1999

Yvonne T. Smith, )

Appellant, )

)

v. ) Request No. 05970653

) Appeal No. 01964429

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On March 27, 1997, the Department of Veterans Affairs (agency) timely

initiated a request to the Equal Employment Opportunity Commission

(EEOC or Commission) to reconsider the decision in Yvonne T. Smith

v. Department of Veterans Affairs, EEOC Appeal No. 01964429 (March

11, 1997). EEOC regulations provide that the Commissioners may,

in their discretion, reconsider any previous Commission decision.

29 C.F.R. �1614.407(a). The party requesting reconsideration must

submit written argument or evidence which tends to establish one or

more of the following three criteria: new and material evidence is

available that was not readily available when the previous decision

was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved

an erroneous interpretation of law, regulation, or material fact, or

misapplication of established policy, 29 C.F.R. �1614.407(c)(2); or the

previous decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3).

Upon review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the agency's

request does not meet any of the criteria of 29 C.F.R. �1614.407(c).

Accordingly, it is the decision of the Commission to DENY the agency's

request for reconsideration. The decision in Appeal No. 01964429

remains the Commission's final decision. There is no further right

of administrative appeal from the decision of the Commission on this

request for reconsideration.

ORDER

The agency shall contact appellant to clarify the dates of the harassing

incidents at issue in allegation 4 in order to determine whether

allegation 4 was timely raised with an EEO Counselor. Thereafter, within

60 days of the date this decision becomes final, the agency shall issue

a letter to appellant accepting allegation 4 for investigation or issue a

new FAD dismissing allegation 4. A copy of the agency's letter accepting

allegation 4 for investigation or a copy of the new FAD dismissing

allegation 4 must be sent to the Compliance Officer as referenced herein.

The agency shall consider, in light of the Commission's finding in the

previous decision that allegation 4 was raised with an EEO Counselor,

whether allegations 2, 3, and 5 - 9 were brought to the attention of an

EEO Counselor or are like or related to a matter that has been brought

to the attention of an EEO Counselor. Specifically, the agency shall

determine:

1. Whether the harassment allegation (allegation 4) encompasses

allegations 2, 3, and 5 - 9; and

2. Whether the harassment allegation is like or related to allegations 2,

3, and 5 - 9.

Within 60 days of the date this decision becomes final the agency shall

reissue a FAD dismissing allegations 2, 3, and/or 5 - 9 for failure

to raise these allegations with an EEO Counselor and/or shall issue a

letter to appellant informing her that the agency will be commencing

EEO counseling concerning allegations 2, 3, and/or 5 - 9. If the agency

determines that it should provide appellant with EEO counseling concerning

allegations 2, 3, and/or 5 - 9, then it should process these allegations

pursuant to 29 C.F.R. �1614.105 et seq. A copy of the new FAD dismissing

allegations 2, 3, and/or 5 - 9, and/or a copy of a letter to appellant

stating that the agency will be commencing EEO counseling concerning

allegations 2, 3, and/or 5 - 9, must be sent to the Compliance Officer

as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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

appellant. If the agency does not comply with the Commission's order,

appellant may petition the Commission for enforcement of the order.

29 C.F.R. �1614.503 (a). Appellant 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 29 C.F.R. ��

1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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 appellant files a civil

action, the administrative processing of the complaint, including any

petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.

RIGHT TO FILE A CIVIL ACTION (R0993)

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 an action in an appropriate

United States District Court. It is the position of the Commission

that 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. You should be aware, however, that

courts in some jurisdictions have interpreted the Civil Rights Act of

1991 in a manner suggesting that a civil action must be filed WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision.

To ensure that your civil action is considered timely, you are advised to

file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive

this decision or to consult an attorney concerning the applicable time

period in the jurisdiction in which your action would be filed. In the

alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)

CALENDARS 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 (Z1092)

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:

JAN 15, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat