01a55337
04-20-2006
Vivian D. Williams, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Vivian D. Williams v. Department of Veterans Affairs
01A55337
April 20, 2006
.
Vivian D. Williams,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55337
Agency No. 2001-0508-2005101657
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 22, 2005, dismissing her formal EEO 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.
In her formal complaint, filed on April 8, 2005, complainant claimed
that she was the victim of unlawful employment discrimination on the
basis of sex (female) when:
On December 8, 2004, a co-worker walked up to complainant and started
rubbing her shoulders and back, and later the same day the co-worker
again started rubbing her shoulders and unhooked her bra;
On December 13, 2004, the co-worker again began rubbing complainant's
shoulders. Complainant indicated that the co-worker did this at least
4 more times throughout the day; and that the co-worker again unhooked
her bra in front of everybody that was in the area. Complainant stated
that these incidents made her so angry that she unsuccessfully tried to
throw a computer mouse and a telephone at the co-worker before telling
him, �don't worry, I'll handle you.� Complainant indicated that she
then called the VA Police to report the incident.
On June 22, 2005, the agency issued a final decision. The agency
dismissed the complaint on the grounds of untimely EEO Counselor contact.
Specifically, the agency determined that complainant initiated EEO
Counselor contact on March 2, 2005, which it found to be seventy-nine
days after the last of the alleged discriminatory events.
The record reveals that the complainant spoke with the EEO Manager of
the Atlanta VA Medical Center on the afternoon of December 13, 2004,
to report the incident that occurred at complainant's work station at
the Decatur VA Medical Center. In a memorandum dated June 17, 2005, the
EEO Manager stated that she advised complainant that she should report the
incident to the police; informed complainant that the agency �had a zero
tolerance for sexual harassment� and that the co-worker would be removed
from the work area pending an investigation into the allegations; and met
complainant at the police department after she filed her police complaint.
The memorandum also indicated that complainant called or stopped by the
EEO manager's �office every few weeks to find out the status of the case.�
In response to complainant's appeal, the agency indicates that complainant
had EEO training and should have been aware of her responsibility to
contact an EEO Counselor with the 45-day time limit.
EEOC regulations require that complaints of discrimination be brought
to the attention of an EEO counselor within 45 days of the date of the
matter alleged to be discriminatory. 29 C.F.R. � 1614.105(a)(1).
The record reflects that complainant spoke with the EEO manager the day of
the last discriminatory event (December 13, 2004). The record reflects
further that complainant followed up with that individual concerning her
belief that action was being taken by the agency concerning the alleged
discriminatory event. Complainant's actions were consistent with an
individual attempting to pursue an EEO complaint of discrimination. The
Commission has consistently held that a complainant satisfies the
criterion of 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 Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22,
1989); Colebrook v. Department of the Treasury, EEOC Appeal No. 01A03013
(July 5, 2000).
Here, the record supports a determination that complainant contacted
an agency official logically connected to the EEO complaint process on
December 13, 2004. The record also reflects that complainant's December
13, 2004 contact was made with the intent to begin the EEO complaint
process. Consequently, we find that complainant's initial EEO contact
did not occur in March 2005, as determined by the agency. Rather, we
find that complainant initiated EEO Counselor contact on December 13,
2004, thereby rendering timely the claims raised in the instant complaint.
The agency's decision to dismiss complainant's complaint on the grounds
that complainant failed to seek EEO counseling in a timely fashion was
improper and is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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
April 20, 2006
__________________
Date