05980219
11-20-1998
Monique Van Wersch, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Monique Van Wersch v. Department of Health and Human Services
05980219
November 20, 1998
Monique Van Wersch, )
Appellant, ) Request No. 05980219
) Appeal No. 01972519
v. ) Agency No. NIAID-95-0330
)
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
________________________________)
GRANTING OF RECONSIDERATION
INTRODUCTION
On December 31, 1997, Monique Van Wersch (hereinafter referred to as
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Van Wersch
v. Dep't of Health and Human Services, EEOC Appeal No. 01972519
(December 3, 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 or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly dismissed
appellant's appeal for untimely filing.
BACKGROUND
Appellant--a GS-3 Clerk Typist--contacted the EEO Office regarding her
allegations of discrimination on July 3, 1995. Thereafter, she filed an
EEO complaint alleging unlawful discrimination. In its final decision
(FAD), the agency defined the following issues in appellant's complaint:
Whether the agency discriminated against appellant on the bases of
her mental disabilities (learning disability and depression), physical
disability (dyslexia, goiter, and hypertension), and reprisal when:
1) She was placed on Absence Without Official Leave (AWOL) on June 1,
1995;
2) Management yelled at her from August 1994 to September 6, 1995,
in the presence of other staff members, for making errors;
3) She was denied promotions from August 1994 to September 6, 1995;
4) She was denied training from August 1994 to September 6, 1995; and,
5) She was denied reasonable accommodation for her disability from August
1994 to September 6, 1995.
In its December 23, 1996 final decision (FAD), the agency accepted in
part and rejected in part appellant's allegations. The postal return
receipt sent to the attorney's address of record showed that Individual
A signed for the FAD on December 27, 1996.
Thereafter, on two occasions, the agency advised appellant of errors in
the FAD and sent her copies of the corrected pages. The corrected pages
were signed for on December 30, 1996 and February 11, 1997, respectively.
Ultimately, the agency accepted allegations 1, 4, and 5 for processing,
but dismissed allegations 2 and 3, "and the continuing violation element
of allegations 2, 3, and 4."
On February 3, 1997, appellant filed her appeal from the FAD. Upon review,
the previous decision dismissed the appeal as untimely filed, finding
that appellant was required to file her appeal by January 27, 1997.
Appellant's attorney contends that the law firm was closed for the
holidays and did not reopen until January 2, 1997. He asserts that
because he did not receive the FAD until that date, appellant's February
3, 1997 appeal was timely filed.
The agency contends that the FAD was sent by certified mail to the law
firm of appellant's attorney and that the postal return receipt card
signed by Individual A indicating receipt on December 27, 1996.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Timeliness Issue
29 C.F.R. �1614.402 provides that if a complainant is represented by
an attorney, then the 30-day time period for filing an appeal shall be
calculated from the receipt of the required document by the attorney.
See also 29 C.F.R. 1614.605(d).
Although the initial postal return receipt was signed on December 27,
1996, the agency later sent corrected pages of the FAD to appellant.
The Commission finds that the corrections to the FAD were substantive
rather than typographical. That is, the corrections concerned those
allegations that would be accepted for processing or dismissed, e.g., one
corrected page indicated that allegations 1, 4, and 5 would be accepted
for processing instead of 1, 3, and 5. Under the circumstances, the
Commission finds that the time period for filing an appeal was "reset"
with each subsequent mailing by the agency. Because appellant did not
receive the final corrected page of the FAD until February 11, 1997,
her February 3, 1997 appeal was timely filed.
Dismissed Issues
Prior to issuing the FAD, the agency requested additional information
from appellant. Appellant clarified that her complaint included the issue
that she was discriminated and reprised against when her supervisor denied
her the right to seek help from the EEO Office. Although appellant's
complaint indicated that the discrimination began in 1994, her affidavit
specified incidents of alleged discrimination beginning in February
1995.<1> In general, appellant alleged that the Supervisor engaged in
a pattern and practice of discriminating against appellant by failing
to provide her reasonable accommodation, by subjecting her to different
treatment than similarly-situated employees, including but not limited
to, yelling at her in front of other employees for making mistakes,
placing her on AWOL when she sought the assistance of a job counselor,
and by denying her promotions and training.
In the FAD, the agency dismissed allegations 2 and 3, and "the continuing
violation element" of allegations 2, 3, and 4.
With respect to allegation 2, the agency found that appellant failed to
show that she was harmed as a result of being yelled at by her Supervisor
and that she therefore failed to state a claim.
The agency also noted that appellant was terminated on September 6,
1995,<2> and that allegation 2 therefore was moot.
The EEO counselor's report showed that appellant complained, inter alia,
of harassment. Appellant asserted that when she made "mistakes," the
Supervisor would loudly criticize her in public and, at times, yell at
her within hearing distance of other staff members. Appellant contended
that this was a part of the disparate treatment which she experienced
by the Supervisor as a result of her disability. Appellant indicated
that the Supervisor's actions humiliated her. Under these facts,
the Commission finds that appellant was aggrieved and therefore stated
a claim. Because appellant has requested compensatory damages, her claim
therefore is not moot. See Yancey v. Dep't of Health and Human Services,
EEOC Request No. 05931195 (July 20, 1994). On remand, the agency shall
accept allegation 2 for processing.
With respect to allegation 3, the agency found that appellant had failed
to state a claim. The agency noted that appellant previously had been
promoted, e.g., in August 1994, she was promoted from a GS-2 Clerk Typist
to a GS-3 Typist. The agency also found that appellant never provided
the additional information it had requested regarding this allegation,
e.g., specific promotions sought and dates such opportunities were denied.
The agency also dismissed the "continuing violation element" of allegation
3.
Appellant's affidavit stated that in April 1995, the Supervisor told her
that she was withdrawing her earlier promise of "putting" appellant up
for a change in job title to secretary. Although appellant has alleged
sufficient facts to show that she was aggrieved and that her allegation
therefore states a claim, the Commission nonetheless affirms the agency's
dismissal of this allegation.
An individual must initiate contact with an EEO counselor within 45
days of the date on which the alleged discriminatory event occurred. 29
C.F.R. �1614.105(a)(1). The existence of a continuing violation,
however, can extend the 45-day limitations period for contacting an
EEO counselor. To establish a continuing violation, a complainant must
show a series of related acts, one or more of which falls within the
limitations period. Valentino v. United States Postal Service, 674 F.2d
56 (D.C. Cir. 1982). A complainant's prior knowledge or suspicion of
discrimination also is relevant to the inquiry. See Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396, 402
(9th Cir. 1990).
The alleged denial of a promotion occurred in April 1995. Appellant,
however, did not contact an EEO counselor until July 3, 1995. Appellant
has not explained why she was unaware of the alleged discrimination
when the incident occurred or what event occurred thereafter to make
her reasonably suspect that her nonpromotion might be the result of
discrimination. Consequently, the Commission finds that allegation 3
was not timely raised with an EEO counselor.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request for reconsideration meets the criteria of
29 C.F.R. �1614.407(c), and the request hereby is GRANTED. The decision
in EEOC Appeal No. 01972519 hereby is REVERSED. Because this decision
constitutes the Commission's first decision addressing the agency's FAD,
either party may request reconsideration of this decision.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations--allegation
2 and the allegation that the Supervisor denied appellant the right to
seek help from the EEO Office--in accordance with 29 C.F.R. �1614.108.
The agency shall acknowledge to the appellant that it has received the
remanded allegations within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to appellant a copy of
the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing,
the agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a 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 (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
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The 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,
the 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 the
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.
STATEMENT OF RIGHTS
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
Nov. 20, 1998
Date Frances M. Hart
Executive Officer
1Pursuant to a reorganization in 1994, appellant was placed in the
Scientific Assessment and Resources Branch under the supervision of the
Branch Chief (the Supervisor).
2In her appeal brief, appellant indicated that she was terminated because
of her absenteeism and that she had appealed the termination to the
Merit Systems Protection Board (MSPB).