01992381
03-01-2000
Susan Y. Ellis, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Susan Y. Ellis, )
Complainant, )
)
v. ) Appeal No. 01992381
) Agency No. 1-98-1110
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. 791 et seq.<1> The final agency decision
was issued on January 13, 1999. The appeal was postmarked January 26,
1999. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).
ISSUES PRESENTED
1. The first issue on appeal is whether the agency properly dismissed
claims 1, 2, 4, 5, 6, and 7 of the complaint on the grounds that these
matters were not brought to the attention of an EEO Counselor and they
are not like or related to a matter that has been brought to the attention
of an EEO Counselor.
2. The second issue on appeal is whether the agency properly dismissed
claim 3 of the complaint on the grounds that complainant failed to file
her formal EEO complaint in a timely manner.
BACKGROUND
According to the EEO Counselor's report, complainant initiated contact
with an EEO Counselor on January 29, 1998. In a formal EEO complaint
dated August 12, 1998, complainant claimed that she was discriminated
against on the bases of her race (white), sex (female), and mental
disability (psychological condition) when:
1. She was denied various requests for annual leave from October 8,
1997 to December 27, 1997.
2. She did not receive on-the-job training for approximately six weeks
after certifying on Ground Control.
3. An agency official in Arizona changed his mind about accepting her
as a transfer once he received negative information about her from a
management official in New Jersey.
4. She received a memo from her Manager stating that he was denying
her request for advance sick leave.
5. After she was deemed medically disqualified as a controller,
management made no effort to offer her an alternate assignment, while a
coworker who had been medically disqualified was assigned to a temporary
staff position.
6. Her request for a transfer was denied.
7. In June 1998, she was informed by her Manager that she had been
listed as absent without leave instead of approved leave without pay.
In its final decision, the agency dismissed claims 1, 2, 4, 5, 6, and
7 on the grounds that these claims raise matters that were not brought
to the attention of an EEO Counselor and they are not like or related
to a matter that has been brought to the attention of an EEO Counselor.
The agency determined based upon the record and in additional discussions
with the EEO Counselor that there is no indication that complainant
raised these issues during her counseling session. The agency dismissed
claim 3 on the grounds that complainant failed to file her formal EEO
complaint in a timely manner. According to the agency, complainant
received her notice of right to file a discrimination complaint on July
24, 1998, but did not file her formal complaint until August 14, 1998.
The agency determined that the notice stated that complainant had to
file her complaint within fifteen days of her receipt of the notice.
Further, the agency stated that complainant should have been familiar
with the complaint process and the applicable time limits given that
she has filed three other complaints.
On appeal, complainant argues that with regard to the notice of right to
file a formal complaint, all she received from the agency was the second
page of the form which contained a signature space for acknowledgment of
receipt. According to complainant, there were no instructions enclosed
with regard to filing a formal complaint. Complainant claims that she
signed the acknowledgment page and returned it to the EEO Counselor.
Complainant states that she assumed the EEO Counselor would then send
her the notice of final interview and the appropriate forms for filing a
formal complaint. We note that the page contained in the record which
is signed by complainant on July 24, 1998, merely indicates that if
complainant retained an attorney, she would notify the agency's Civil
Rights Manager, and questions whether complainant has filed a grievance or
MSPB appeal; this page contains no page numbering or other indication that
it is but one page of a multi-page document or otherwise was submitted
to complainant along with the notice of final interview.
With regard to the other claims that were dismissed, complainant
maintains that she raised these issues with an EEO official in a
letter dated January 20, 1998, and that the EEO Counselor had a copy.
Complainant contends that the EEO Counselor informed her that he had a
copy of all of her claims and that he read the beginning of the claims
to make sure he had the correct letter. In support of her appeal,
complainant submits a copy of the letter dated January 20, 1998.
This letter contains a discussion of the issues that were included in
the formal complaint as claims 1, 2, 3, and 4.
In response, the agency reiterates that the formal complaint was
not filed until August 14, 1998, despite the fact that complainant
received the notice of right to file a formal complaint on July 24, 1998.
The agency maintains that the notice clearly stated the time limitations.
The agency also asserts that the only issue raised with the EEO Counselor
was that set forth in claim 3.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency
extends the time limits in accordance with � 1614.604(c).
The agency asserts that complainant received a notice of the right to
file a formal discrimination complaint on July 24, 1998. Complainant
maintains that she only received the acknowledgment page and that she did
not receive instructions. Complainant stated that after she returned the
acknowledgment page to the EEO Counselor, she assumed the EEO Counselor
would then send her the notice of final interview and the appropriate
forms for filing a formal complaint. We find that the agency failed
to proffer any evidence to show that complainant received the notice of
right to file a formal complaint along with the identified page dated July
24, 1998. The agency has the burden of providing evidence and/or proof
to support its final decisions. Ericson v. Department of the Army, EEOC
Request No. 05920623 (January 14, 1993); Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992). Complainant's argument that
she did not receive a complete notice of right to file a formal complaint
has not been rebutted by the agency. Accordingly, the agency's dismissal
of claim 3 of the complaint on the grounds of untimeliness was improper
and is REVERSED. This claim is hereby REMANDED for further processing
pursuant to the ORDER below.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an
agency shall dismiss a complaint which raises a matter that has not been
brought to the attention of an EEO Counselor, and is not like or related
to a matter on which the complainant has received counseling. A later
claim or complaint is "like or related" to the original complaint if the
later claim or complaint adds to or clarifies the original complaint and
could have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (March 8, 1990).
The record contains a letter dated January 20, 1998, from complainant to
an EEO official wherein complainant raised the issues that were later
defined in the formal complaint as claims 1, 2, 3, and 4. The agency
has not refuted complainant's position that the EEO Counselor had a
copy of this letter. We find that the EEO Counselor was placed on
notice that complainant was raising these matters. We note that claim
7 relates to an issue involving leave and attendance that occurred
approximately five months after complainant's January letter. In light
of the fact that both claims 1 and 4 also concern leave, we find that
claim 7 is sufficiently related to the matters raised in those claims.
Furthermore, we note that claim 6 involves the denial of complainant's
request for a transfer, which appears to be like or related to claim 3,
which involves the agency official in Arizona changing his mind about
accepting complainant as a transfer. Accordingly, the agency's dismissal
of claims 1, 2, 4, 6, and 7 was improper and is REVERSED. These claims
are hereby Remanded for further processing pursuant to the ORDER below.
As for claim 5, we note that this matter concerns complainant being deemed
medically disqualified as a controller and management making no effort
to offer her an alternate assignment. We find that this claim was not
raised prior to the filing of the formal complaint and is not sufficiently
related to the other matters raised in the complaint. Accordingly,
the agency's dismissal of claim 5 was proper and is AFFIRMED.
CONCLUSION
The agency's dismissal of claim 5 is hereby AFFIRMED. The agency's
dismissal of claims 1-4, 6 and 7 is hereby REVERSED. These claims are
hereby REMANDED for further processing pursuant to the ORDER below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims (1-4 and 7) 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 claims
(1-4 and 7) 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 an
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 (M1199)
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). 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
(T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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 1, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE 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 Assistant1On 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.