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