Joan F. Ladesh, Complainant,v.Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionMar 25, 2005
01a46151 (E.E.O.C. Mar. 25, 2005)

01a46151

03-25-2005

Joan F. Ladesh, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.


Joan F. Ladesh v. Department of Housing and Urban Development

01A46151

March 25, 2005

.

Joan F. Ladesh,

Complainant,

v.

Alphonso Jackson,

Secretary,

Department of Housing and Urban Development,

Agency.

Appeal No. 01A46151

Agency No. NY 04 02

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated August 16, 2004, dismissing her 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of race (Caucasian), color (White), national

origin (Irish American), sex (female), disability, age (3/31/37), and

reprisal for prior EEO activity when:

(1) On June 30, 2003, complainant became aware that she was not

selected for the position of Homeless Coordinator, GS-0301-13/14 in the

Kansas City, Missouri Region as advertised under vacancy announcement

PO-MSH-2002-0185AZ and RE-DEU-2003-0042;

(2) From approximately 2002 until the time of the instant complaint,

complainant's request for a hardship transfer has not been accommodated;

From approximately 2002 until the time of the instant complaint,

complainant has been denied access to her leave records, charged Leave

Without Pay, and denied use of her annual and sick leave;

Since June 2002, until the time of the instant complaint, complainant

has been subjected to a hostile work environment.

The agency dismissed complainant's complaint. Specifically, the agency

dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely

EEO Counselor contact, and the agency dismissed claims (2) - (4) pursuant

to 29 C.F.R. � 1614.107(a)(1) for stating the same claim that is pending

before or has been decided by the agency or Commission.

Claim (1)

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is

not triggered until a complainant reasonably suspects discrimination,

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

become apparent. McLoughlin v. Department of the Treasury, EEOC Request

No. 05A01093 (Apr. 24, 2003). The Commission has held that in order to

establish EEO counselor contact, an individual must contact an agency

official logically connected to the EEO process and exhibit an intent

to begin the EEO process. Allen v. United States Postal Service, EEOC

Request No. 05950933 (July 8, 1996).

The Commission finds complainant should have reasonably suspected that

discrimination occurred on June 30, 2003. The agency decision determined

that complainant initiated EEO Counselor contact on December 11, 2003,

after expiration of the forty-five day limitation. However, on appeal

complainant submitted copies of e-mails exchanged between the complainant

and the EEO Counselor in July 2003 discussing her non-selection claim.

These e-mails reveal that complainant initiated EEO contact with an

intent to begin the EEO process no later than July 3, which establishes

that she initiated timely EEO contact. Consequently, we find the agency

improperly dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2)

for untimely EEO Counselor contact.

Claims (2) - (4)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that states the

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

or Commission. To be dismissed as the "same claim," the present and

prior complaints must have involved identical matters. It has long been

established that "identical" does not mean "similar." The Commission

has consistently held that in order for a complaint to be dismissed as

identical, the elements of the complaint must be identical to the elements

of the prior complaint in time, place, incident, and parties. See Jackson

v. USPS, EEOC Appeal No. 01955890 (Apr. 5, 1996).

Regarding claim (2), we find that the agency improperly dismissed claim

(2) in its entirety pursuant to 29 C.F.R. � 1614.107(a)(1) for raising

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

the agency or Commission. The record reveals that in 2003, complainant

filed EEO complaint case number NY-03-01 in which she alleged, inter alia,

that her requests for a hardship transfer had not been accommodated since

July 1999. The Commission dismissed this claim for untimely EEO contact

because the record lacked evidence that the complainant submitted a

transfer request which was denied within forty five (45) days of January

28, 2003, when complainant initiated EEO Counselor contact. Ladesh

v. Department of Housing and Urban Development, EEOC Appeal No. 01A45022

(Jan. 26, 2005). In the instant complaint, complainant alleges that her

transfer requests have not been accommodated since 2002. We find that

the two claims are not identical because complainant's claims in the

two cases do not cover the same time period. Therefore, we find claim

(2) raises the same claim that was raised in a previous EEO complaint

for all transfer requests which were denied prior to January 28, 2003,

and the agency properly dismissed claim (2) for the time period prior to

that date. However, we find that the agency improperly dismissed claim

(2) for complainant's hardship transfer requests denied after January

28, 2003.

The agency decision determined that both claims (3) and (4) were

previously raised in EEO complaint case number NY-03-07, which is

currently �in coordination within the Department for issuance of a

Final Decision.� After careful review, we find the record contains

insufficient information to determine whether claims (3) and (4) state

the same claims that are pending before the agency. The record contains

little documentation regarding case number NY-03-07, and the Commission

is unable to determine what claims are specifically being addressed in

that case. Therefore, we are unable to determine if claims (3) and (4)

were properly dismissed.

Accordingly, the agency's dismissal of claim (1) is REVERSED; the

dismissal of claim (2) is AFFIRMED for all transfer request denials

prior to January 28, 2003 and REVERSED for all transfer request denials

subsequent to January 28, 2003; and the dismissal of claims (3) and (4)

is VACATED. Claims (1) - (4) are REMANDED to the agency for further

processing pursuant to the Order below.

ORDER

The agency shall undertake the following actions:

The agency is ordered to process claim (1) and the applicable portion

of claim (2) 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.

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.

The agency shall conduct a supplemental investigation regarding whether

claims (3) and (4) stated the same claims that are pending before the

agency in case number NY-03-07. The agency shall include any relevant

documentation supporting its determination, along with an explanation

of what is reflected in such documents.

Within thirty (30) calendar days of the date that this decision

becomes final, the agency shall issue a new determination or issue

a letter notifying complainant that it is accepting claims (3) and

(4) for investigation. If the agency accepts claims (3) and (4) for

investigation, it is instructed to consolidate these claims with case

number NY-03-07 as appropriate. A copy of the new determination or notice

of processing 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 (T0900)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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

March 25, 2005

__________________

Date