01991931
05-31-2001
Lisa R. Matthews, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lisa R. Matthews v. Department of Veterans Affairs
01991931
05-31-01
.
Lisa R. Matthews,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01991931
Agency No. 984179
DECISION
Lisa R. Matthews (complainant) filed an appeal with the Equal Employment
Opportunity Commission (Commission) from a final agency decision (FAD)
dated November 6, 1998, and received by complainant on November 17,
1998, 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. (Supp. 1994 & Supp. IV 1999). The appeal
was postmarked December 16, 1998. Accordingly, the appeal is timely
pursuant to 29 C.F.R. � 1614.402(a), and is accepted in accordance with
29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely EEO Counselor contact.
BACKGROUND
On August 3, 1997, complainant contacted her union representative to
determine whether the representative thought that she had grounds for
a complaint. On August 12, 1997, complainant initiated EEO counselor
contact alleging that she had been subjected to sexual and non-sexual
harassment based on her sex (female) when:
On June 27, 1997, she was terminated during her probationary period
from her position as a Pharmacy Technician;
From August 1996 through June 27, 1997, she was subjected to intense
working conditions due to harassment and sexual harassment because the
Director of Consolidated Mail Outpatient Pharmacy (CMOP) yelled and
screamed at employees, used profanity, flirted and carried on horseplay
with some employees;
On April 3, 1997, the Director of CMOP and an electrician talked for
ten to fifteen minutes near the manual station where she worked and
practically every other word that came out of their mouths was either
�god-damn� or �mother-f*****;�
On May 7, 1997, she witnessed the Director of CMOP and another employee
engaged in horseplay; and
On June 6, 1997, she witnessed the Director of CMOP and another employee
engaged in horseplay which she found offensive and caused her to feel
uncomfortable.
In its FAD dated November 6, 1998, the agency dismissed complainant's
complaint for untimely EEO counselor contact. The agency found that
complainant had not contacted an agency official logically connected to
the EEO process when she contacted her union official on August 3, 1997.
Further, the agency found complainant's allusion to her lack of knowledge
about what constituted the basis of a complaint to be without merit
because there was evidence on file that complainant had attended four
hours of training on August 6, 1996, on the discrimination complaint
process which covered the basis of an EEO complaint; and, had also
attended a two-hour training session on sexual harassment on November
13, 1996.
FINDINGS AND ANALYSIS
Generally, claims of discrimination must be raised with an EEO Counselor
within forty-five (45) days of the effective date of the personnel
action in question. See 29 C.F.R. � 1614.105(a)(1). The agency may
dismiss claims that fail to comply with this time limit. See 29 C.F.R. �
1614.107(a)(2). The Commission has consistently held that a complainant
satisfies the criterion of EEO Counselor contact by contacting an
agency official logically connected with the EEO process, even if that
official is not an EEO Counselor, and by exhibiting an intent to begin
the EEO process. See Allen v. United States Postal Service, EEOC Request
No. 05950933 (July 8, 1996).
Here, complainant states that she contacted her union representative
the week of August 3, 1999, primarily because she thought the union
representative was involved with the EEO process as she was on an agency
contact list of EEO officials. The record includes a copy of a agency
pamphlet entitled� Prevention of Sexual Harassment: EEO Officials.� This
same contact list gave the name and telephone number of EEO Counselors
as well as similar information for the union representative, agency's
EEO Officer, EEO Manager, the Inspector General and the National EEO
Information Line. There was no information on the pamphlet indicating
which contacts would not be considered valid for EEO complaint purposes.
In rebutting complainant's arguments, the agency supplied documentation
showing that complainant was given a four-hour training class on sexual
harassment and discrimination complaint processing on August 6, 1996;
in addition, complainant also received a detailed memo on �Procedures
for Filing an EEO Complaint.� This memo included the contact information
for the agency's EEO Program Manager. Finally, the agency provided
a copy of its �Federal EEO Complaint Process� poster, which it noted
as having been posted on its EEO bulletin boards since 1993. However,
in reviewing the agency's sexual harassment pamphlet, a complainant may
erroneously be led to believe that contacting the union representative,
the Inspector General Hotline or the agency's Employment Assistance
Program are as valid for EEO contact purposes as the EEO Counselors or
the EEO Manager listed on the pamphlet. In view of this evidence,
we find persuasive complainant's belief that contact with the union
official constituted contact with an individual �logically connected
with the EEO process.� Therefore, the agency's dismissal was improper.
CONCLUSION
The agency decision to dismiss complainant's claim was improper and is
REVERSED. This claim is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency is ORDERED to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___05-31-01_______________
Date