01984211
06-16-1999
Maria T. Gotay, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Maria T. Gotay v. Department of Veterans Affairs
01984211
June 16, 1999
Maria T. Gotay, )
Appellant, )
)
v. ) Appeal No. 01984211
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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., and Section 501 of the Rehabilitation Act of
1973, as amended, 42 U.S.C. �2000e et seq. The final agency decision
was issued on April 9, 1998. The appeal was postmarked April 24, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that it states the same claim as that which
was previously raised and withdrawn.
BACKGROUND
Appellant initiated contact with an EEO Counselor on September 12, 1996.
According to the EEO Counselor's report, appellant stated in a meeting
with the EEO Counselor that on or about August 14, 1996, the Foreman
made sexual and offensive comments about women. The EEO Counselor's
report further indicates that appellant stated that after she brought
these comments to the attention of the Assistant Director of the National
Cemetery, she was retaliated against by being temporarily assigned the
additional duties of Cemetery Representative, effective September 3,
1996, and she was required to wear a uniform beginning on that date.
In a statement dated October 11, 1996, appellant withdraw her informal
EEO complaint. Appellant stated that she did not wish to continue
with the complaint since she had been reassigned to work at an agency
hospital and she would no longer have to go to the National Cemetery.
Appellant was also provided with a Notice of Final Interview on October
11, 1996. On January 3, 1997, appellant filed a formal EEO complaint
wherein she alleged that she was discriminated against on the bases of
her mental disability (unspecified), sex (female), and in reprisal for
her previous EEO activity when:
1. On August 14, 1996, the Foreman made sexual and offensive comments
about women.
2. After bringing the comments to the attention of the Assistant
Director of the National Cemetery, she was retaliated against by being
temporarily assigned the additional duties of Cemetery Representative,
effective September 3, 1996, and by being required to wear a uniform
beginning on that date.
3. On September 23, 1996, her request for sick leave was denied and
she was charged with being absent without leave (AWOL).
4. As a result of the discriminatory practices, effective October 13,
1996, appellant accepted a change to a lower grade at the agency Medical
Center.
After appellant filed her formal complaint, the agency sent appellant a
letter wherein it was requested that she explain why she did not seek EEO
counseling prior to filing the complaint. By letter dated January 27,
1997, appellant's attorney informed the agency that appellant wished
to proceed with the matter that she had withdrawn on October 11, 1996.
Appellant's attorney stated that appellant had withdrawn her complaint
pursuant to her physician's instructions, as appellant was experiencing
much stress. It was noted that appellant was hospitalized for treatment
of depression.
By letter dated August 12, 1997, the agency requested that appellant
provide specific information with regard to her mental condition at the
time that she withdrew her complaint, including the medication, if any,
that she was taking. The dates of appellant's hospitalization were also
requested, as well as any other information pertaining to appellant's
ability to make decisions at the relevant time.
By letter dated September 10, 1997, appellant stated that it was
recommended by her psychiatrist and the Employee Assistance Coordinator
that she leave her place of employment. Appellant stated that she
accepted a demotion in grade from her position of Secretary/Steno
GS-318-6/10 to the position of Program Clerk, GS-303-5/10. With regard
to her medications, appellant stated that since September 23, 1996, she
has been taking five milligrams of zoloft and 20 milligrams of paxil for
depression, 400 milligrams of uniphyl, and 2.5 milligrams of proventil
inhalation solution for her asthma. Appellant stated that when she
withdrew her complaint, she was very confused and depressed, and was
not capable of making good decisions. Appellant also provided a letter
from her psychiatrist stating that appellant was partially hospitalized
from October 2, 1996 - October 10, 1996. The psychiatrist stated that
appellant was on 20 milligrams of paxil from September 24, 1996 - August
28, 1997. The psychiatrist further stated that during that period,
appellant suffered from major depression, insomnia, loss of appetite,
confusion, anxiety, and lower levels of memory and concentration.
In its final decision, the agency dismissed appellant's complaint
on the grounds that the complaint stated a claim that was previously
raised and withdrawn. The agency determined that although appellant
stated that she was confused and incapable of making good decisions on
October 11, 1996, she did not submit medical documentation that would
describe any adverse effects she was experiencing while on the medication.
The agency noted that appellant's partial hospitalization concluded the
day before she withdrew her complaint. With regard to appellant's use
of anti-depressants, the agency stated that appellant was taking these
medications when she filed her formal complaint, and therefore, it does
not appear that appellant's judgment was substantially impaired by the
medications.
On appeal, appellant contends that her withdrawal of her complaint was
not knowing and voluntary. In support of her position, appellant notes
that she did not receive compensation for the withdrawal of her complaint,
but rather received a transfer to a lower scale position with less pay.
Appellant claims that she never understood the EEO process and that she
was not advised of her rights or informed that she could seek counsel.
Appellant states that the execution of the withdrawal occurred on
October 8, 1996, while she was still hospitalized for treatment of major
depression. According to appellant, the final medical certificate issued
by her psychiatrist states that she was suffering from low levels of
memory and concentration.
ANALYSIS AND FINDINGS
In past cases, the Commission has found that where an "appellant knowingly
and voluntarily withdrew his complaint .... the Commission considers the
matter to have been finally abandoned." See Pedro C. Tellez v. Department
of Transportation, EEOC Request No. 05930805 (February 25, 1994).
The Commission has held that a complainant may not request reinstatement
of an informal complaint unless the complaint was withdrawn pursuant
to a settlement agreement. See Allen v. Department of Defense, EEOC
Request No. 05940168 (May 25, 1995). Once a complainant has withdrawn an
informal complaint, absent a showing of coercion, a complainant may not
reactivate the EEO process by filing a complaint on the same issue. Id.
To allow such a practice would, in effect, extend the limitations period
for filing a formal complaint ad infinitum and subvert the need for
timeliness and efficiency in the EEO administrative process.
Upon review, we find that the agency's dismissal of allegations 1-2
was proper. We reject appellant's argument that the withdrawal of
her informal complaint was not knowing and voluntary. We cannot
find that appellant lacked the mental capacity to decide to withdraw
her complaint.<1> A reading of the withdrawal statement reveals that
appellant clearly stated that she was withdrawing her complaint of sexual
harassment and reprisal. Appellant stated in the withdrawal that she did
not wish to continue with the complaint because she had been reassigned
to work at the agency hospital and she would no longer have to go to the
National Cemetery. The wording of the withdrawal statement offers no
indication that appellant was incapable of making a knowing and voluntary
decision. We note that although appellant claims to have executed the
withdrawal statement on October 8, 1996, the date of the statement is
October 11, 1996, the day after her partial hospitalization concluded.
Appellant was sufficiently recovered to return to work on October 11,
1996. We find that appellant has not established that on October 11,
1996, her judgment was substantially impaired or that her decision to
withdraw her informal complaint was anything but knowing and voluntary.
Accordingly, the agency's dismissal of allegations 1-2 was proper and
is AFFIRMED.
With regard to allegations 3-4, we find these issues were not part of
appellant's informal EEO complaint and she did not receive EEO counseling
concerning these issues prior to their inclusion in her formal complaint.
We note that appellant met with an EEO Counselor on September 17, 1996.
The incidents set forth in allegations 3-4 occurred on September 23,
1996 and in October 1996, respectively. There is no reference to these
incidents in the EEO Counselor's report. The date that the instant
formal complaint was filed, January 3, 1997, is the date that appellant
shall be considered to have initiated contact with an EEO Counselor with
regard to these issues. Accordingly, the agency's decision to dismiss
allegations 3-4 on the grounds that they were part of the withdrawn
complaint was improper and is REVERSED. These allegations are REMANDED
for processing in accordance with the ORDER below.
CONCLUSION
The agency's decision to dismiss allegations 1-2 is hereby AFFIRMED.
The agency's decision to dismiss allegations 3-4 is hereby REVERSED.
ORDER
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.105. The agency shall acknowledge to the appellant
that it has received the remanded allegations within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
promptly contact appellant and afford her EEO Counseling with regard
to the remanded allegations. Appellant shall not be required to file
a new formal complaint. Within 30 days of the conclusion of the EEO
counseling process, the agency shall issue a notice of acceptance and/or
a final decision.
A copy of the notice of acceptance and/or the final agency decision 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 (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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 16,1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 See Radon v. Department of Health and Human Services, EEOC Appeal No.
01953245 (September 27, 1996) (diminished mental capacity not found in
determining whether the execution of a settlement agreement was knowing
and voluntary, although psychiatrist's statement indicated that appellant
was suffering from post-traumatic stress disorder and showed clinical
evidence of depression, anxiety, frustration, helplessness and
hopelessness); Tomlinson v. United States Postal Service, EEOC Appeal No.
01945856 (March 8, 1995) (diminished mental capacity alleged but not
found in failure to contact EEO Counselor in a timely manner).