Vanessa M. Welch, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01982906 (E.E.O.C. Apr. 2, 1999)

01982906

04-02-1999

Vanessa M. Welch, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Vanessa M. Welch v. Department of Agriculture

01982906

April 2, 1999

Vanessa M. Welch, )

Appellant, )

)

v. ) Appeal No. 01982906

) Agency Nos. 952621 & 951003

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

On February 26, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated January 30, 1998, pertaining

to 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. In her complaint, appellant alleged that she was subjected to

discrimination on the bases of race (African-American) and in reprisal

for prior EEO activity when:

Appellant suffered from a continual pattern of harassment that affected

her working conditions; and

Appellant received a series of performance appraisals.

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 C.F.R. �1614.107(a), for stating a claim that the agency has

previously decided, or alternatively, pursuant to EEOC Regulation 29

C.F.R. �1614.107(b), for failure to timely contact an EEO counselor.

Specifically, the agency found that in settlement of a class complaint,

appellant was given the option to pursue allegations that occurred from

March 10, 1994 to October 3, 1994. Further, the agency found that none

of appellant's allegations relate to that time frame, and that no new

allegations have been raised after that time frame.

The record does not contain a copy of any prior complaint, and also does

not include a copy of the settlement agreement referred to in the FAD.

With regard to timely contact, the Counselor's Report states that the

date of appellant's initial EEO counselor contact was "unknown: no

record made."

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency

shall dismiss a complaint or a portion of a complaint that states the

same claim that is pending before or has been decided by the agency

or Commission. However, the record does not contain a copy of the

prior complaints. Accordingly, it is impossible for the Commission to

determine whether or not the allegations raised by appellant in Agency

Numbers 952621 and 951003 are, in fact, identical to any previously raised

allegations. Clearly, it is the burden of the agency to have evidence

or proof to support its final decisions. See Marshall v. Department

of Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Accordingly, the

agency's decision to dismiss appellant's complaint for stating a claim

that has been decided by the agency is REVERSED.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). Thus, the time limitation can be triggered

before all the facts that support a charge of discrimination have become

apparent, but not until a complainant reasonably suspects discrimination.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

With regard to timely contact, the agency again failed to provide

any evidence to support its decision. The Counselor's Report states

that the date of initial counselor contact is unknown and, therefore,

the Commission cannot find that appellant's initial counselor contact

was untimely. Thus, the agency failed to substantiate the bases for

its final decision on the grounds that appellant's initial counselor

contact was untimely. See Marshall v. Department of the Navy, EEOC

Request No. 05910685 (September 6, 1991).

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's complaint is

REVERSED, and the allegations are REMANDED for further processing in

accordance with this decision.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations 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 acknowledgment 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 - ON APPEAL

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. �1614.604(c).

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 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 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:

April 2, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations