01984398
06-23-1999
Deborah J. Zygmunt, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Deborah J. Zygmunt v. Department of Veterans Affairs
01984398
June 23, 1999
Deborah J. Zygmunt, )
Appellant, )
)
v. ) Appeal No. 01984398
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
For the reasons that follow, the Commission sets aside the agency's March
31, 1998 final decision (FAD), which dismissed appellant's July 8, 1997
formal EEO complaint<1> for failure to raise her allegations with an EEO
Counselor during precomplaint counseling. See 29 C.F.R. �1614.107(b).
We find the agency has raised no new contentions in its response to
appellant's May 1, 1998 appeal,<2> by her attorney, to persuade us to
the contrary.
We find the agency has not met its burden of providing a clear record with
sufficient evidence to support the FAD. Hines v. U.S. Postal Service,
EEOC Appeal No. 01923566 (May 13, 1993); EEO Management Directive (MD)
110 (October 22, 1992), Ch. 5, �VIII (A); Henry v. U.S. Postal Service,
EEOC Request No. 05940897 (May 18, 1995).
We find, for example, numerous documents that are unintelligible
or presented without context, e.g., return receipt "green cards,"
without indication as to what was being mailed. The record is also not
entirely clear as to when the agency was put on notice that appellant
was represented by counsel, thereby requiring the agency to serve
all documents and decisions on counsel and not on appellant. See 29
C.F.R. �1614.605(d). Finally, we find the record ambiguous as to what
appellant and the EEO Counselor discussed regarding those issues that
appear to have been defined during counseling. Smith v. United States
Postal Service, EEOC Request No. 05921017 (Apr. 15, 1993).<3>
The FAD is hereby REVERSED, and this matter is hereby REMANDED for further
processing consistent with this decision and applicable regulations.
The parties are advised that this decision is not a decision on the merits
of appellant's July 8, 1997 EEO complaint. The agency shall comply with
the Commission's ORDER set forth below.
ORDER
The agency is hereby ORDERED to conduct a supplemental investigation,
with the cooperation of appellant and her attorney. The agency, therefore,
is hereby ORDERED to take the following actions:
1. Obtain a statement, under oath or affirmation, from appellant's EEO
Counselor, and any and all other persons with first-hand knowledge of
this matter, including appellant, regarding the following:
(a) Any and all conversations between appellant and the EEO Counselor;
as well as between appellant and agency officials; and between appellant's
EEO Counselor and appellant's attorney; and between appellant's attorney
and agency officials, which officials shall specifically be identified;
regarding the specifics of appellant's allegations including, but not
limited to, the following: (1) acts of discrimination complained of;
(2) dates each alleged act of discrimination occurred; (3) the bases of
discrimination for each alleged act of discrimination; and (4) the name,
title, and position of each agency official whom appellant has alleged
discriminated against her in this matter.
(b) These sworn or affirmed statements shall include, but not be limited
to, identifying those individuals with whom appellant had discussed her
allegations in this matter, the dates those discussions took place, and
the manner in which those discussions were held (e.g., via the telephone,
electronic mail, or regular correspondence).
(2) The agency shall also identify the date, and the manner in which,
it was first notified that appellant was represented by counsel in this
matter.
(3) The agency shall ensure that appellant's position, at the time this
matter arose, is clearly and specifically identified, including the
applicable unit, branch, or division that employed appellant at the time
this matter arose, with relevant dates of employment at the activity
in question. In addition, the agency shall ensure that any and all
relevant and necessary documents pertaining to this case are produced
and that they are complete, legible, and identified; and, further,
that all abbreviations are spelled out, and all agency terms of art are
explained, when and where used, particularly within the context of the
present matter.
(4) The agency shall obtain and produce information and documentation
regarding the following: (a) all EEO notices provided appellant; (b) the
manner in which those notices were provided appellant; (c) the content
of those notices; (d) the specific date appellant received each notice,
if at all; (e) appellant's response, if any, to each notice.
(5) The supplemental investigation shall include an analysis regarding
which issues, if any, appellant raised during EEO counseling in this
matter, were like or related to those issues appellant set forth in her
July 8, 1997 EEO complaint.
(6) Thereafter, the agency shall issue a report of the supplemental
investigation; as well as a final decision (FAD). The FAD shall
specifically identify all the issues in appellant's July 8, 1997
EEO complaint; and specifically identify which issues, if any, it is
accepting for investigation;, and which issues, if any, it is dismissing.
The FAD shall provide the legal grounds for dismissal of each allegation,
as well as the facts and documents relied upon. In this regard, the
agency shall again ensure that all relevant, as well as referenced,
documents are produced and made a part of the record in this case. The
FAD shall also contain appeal rights to the Commission.
(7) The agency shall complete all the above actions, including the
issuance of the report of supplemental investigation, and the FAD,
within ninety (90) calendar days of the date the Commission's decision
becomes final in this matter.
(8) Copies of the report of supplemental investigation and the FAD,
issued pursuant to instruction (8) above, shall 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. �l6l4.604(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:
June 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1We note that in her complaint appellant requested punitive damages,
in addition to compensatory damages. However, "punitive damages are not
available to Federal employees." See Jones v. Department of Health
and Human Services, EEOC Request No. 05940377 (January 23, 1995), citing
Graham v. U.S. Postal Service, EEOC Request No. 05940132 (May 19, 1994).
2Appellant indicates she received the FAD on April 4, 1998. In the
absence of evidence to the contrary, we find appellant's appeal to be
timely. See 29 C.F.R. ��1614.402 and .604, in relevant parts.
3The Commission noted in Smith, supra, that EEO Management Directive 110,
Chap. 2, III (Oct. 22, 1992), provides that, at the counseling stage,
the EEO Counselor must be certain the complainant's issues are clearly
defined and that the complainant agrees on what issues are to be the
subject of the inquiry and subsequent attempts at resolution.