01A05880
09-25-2003
Meliza S. Manzano, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Meliza S. Manzano v. Department of Veterans Affairs
01A05880
09-25-03
.
Meliza S. Manzano,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05880
Agency No. 200M-1126
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 10, 2000, dismissing her complaint of unlawful
employment discrimination for untimely contact with an EEO counselor
pursuant to 29 C.F.R. � 1614.107(a)(2) and for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant filed a complaint in which she set forth three claims of
discrimination. In the first claim, complainant alleged that the agency
discriminated against her on the bases of race, gender, national origin
(Hispanic), disability, and reprisal with respect to six incidents
involving the terms and conditions of her work that took place between
September 1997 and January 2000. In the second claim, complainant alleged
that the agency discriminated against her on the above-referenced bases
with respect to her annual performance evaluations for fiscal years
1997 and 1998. In the third claim, complainant alleged that the agency
subjected her to a hostile environment on the above-referenced bases.
She identified 67 incidents that occurred between October 1997 and January
2000. The agency rejected all three claims on procedural grounds. With
respect to incidents (1) through (5) in claim (1), all of claim (2), and
incidents (1) through (62) in claim (3), the agency rejection was based
on complainant's untimely contact with an EEO counselor. The remaining
incidents, though timely, were rejected on the grounds that complainant
failed to state a claim in connection with those incidents, either singly
or collectively.
The counselor's report establishes that complainant first contacted an EEO
counselor on January 28, 2000. Consequently, the period for contacting a
counselor began to run on December 14, 1999. The performance evaluations
at issue in claim (2) are therefore time-barred since they occurred before
December 14, 1999. On the other hand, all sixty-seven incidents cited
in support of claim (3), as well as the six incidents cited in support
of claim (1), constitute a single claim of harassment, and should be
processed as such. It is therefore the decision of the Commission
to vacate that part of the agency's final decision dismissing claims
(1) and (3), and to affirm that part of the agency's final decision
dismissing claim (2). The agency shall process claims (1) and (3)
together in accordance with our order below.
ORDER (E0900)
The agency is ordered to process claims (1) and (3) as a single,
consolidated claim of hostile work environment comprising the six
incidents in claim (1) and the sixty-seven incidents comprising claim (2).
The agency shall do so in accordance with 29 C.F.R. � 1614.108. It 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
____09-25-03______________
Date