01A04146
03-27-2001
James E. Pilto, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
James E. Pilto v. Department of Veterans Affairs
01A04146
March 27, 2001
.
James E. Pilto,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04146
Agency No. 200K-0535-99-5998
DECISION
Complainant filed an appeal with this Commission from an agency November
29, 1999 decision to dismiss his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal
as timely.<1> In his October 23, 1999 formal complaint, complainant
alleged discrimination on the bases of sex (male), age, disability,
and in reprisal for prior EEO activity.
In its dismissal, the agency defined the complaint as alleging harassment
through a report of contact and e-mails concerning a leave request.
It dismissed the claim for not raising the matter with an EEO Counselor.
The agency noted that complainant was informed of the procedures for
contacting an EEO Counselor from an EEO Investigator in June 1999, and
from a memo to all employees dated July 16, 1998. The dismissal also
mentioned complainant's July 1999 counselor contact on an unrelated matter
to show complainant's awareness of the counselor contact requirement.<2>
On appeal, complainant admits that he did not seek counseling. He argues,
however, that there were no EEO Counselors at his facility, that he never
discussed how to contact a counselor with the investigator, and that
he never received the memorandum referenced in the agency's decision.
The record contains a signed statement from the investigator, indicating
that he told complainant to contact an EEO Counselor to begin the EEO
complaint process.
The agency may dismiss complaints not brought to the attention of
an EEO Counselor, provided the complaint is not �like or related� to
matters for which complainant received counseling. See 29 C.F.R. �
1614.107(a)(2). 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).
Complainant admits that he did not contact an EEO Counselor. Further,
his claims in the present complaint are not like or related to any matter
raised with a counselor. The Commission finds that complainant was aware
of the requirement to contact an EEO Counselor -- he did so in another
complaint, and was informed of the requirement by an EEO official.
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 27, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency argues that the appeal was untimely. Although the agency
submitted a signed return receipt card to prove that complainant received
its final decision, the card was not dated. Absent some evidence that
complainant received the decision more than thirty days prior to his
appeal, the Commission presumes that his filing was timely.
2The unrelated complaint was appealed separately in EEOC Appeal
No. 01A01637.