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