01996121
11-28-2000
Sharon M. Woodard, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Sharon M. Woodard v. Department of Veterans Affairs
01996121
11-28-00
.
Sharon M. Woodard,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996121
Agency No. 98-2883
DECISION
On June 3, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) concerning her complaint that the
agency discriminated against her in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal
is accepted by the Commission in accordance with 29 C.F.R. � 1614.405.
On September 16, 1998, complainant filed a complaint against the
agency alleging discrimination based on race (Black). Specifically,
her allegations concerned:
1) her not being promoted on March 1, 1998;
2) agency officials harassing her on April 15, 1996 and September 4 and 6,
1996; and
3) her working conditions, on March 1, 1997.
The agency accepted claim (1) for investigation.<2> Claims (2) and (3)
were dismissed on the grounds of untimely counselor contact. According to
the record, complainant, prior to filing a formal complaint, never brought
claims (2) and (3) to the attention of the counselor. The agency also
dismissed these allegations on the grounds that they failed to state a
claim. This appeal followed.<3>
Claims (2) and (3)
Because complainant did not receive counseling on claims (2) and (3),
the record contains very little information about these matters. In a
letter, dated February 24, 1999, complainant's attorney, in providing
an explanation for why his client did not contact an EEO counselor
during the 45-day period that followed these claims, stated that �[m]y
client informs me that she was not aware that she was required to file
her charge with the EEO Officer within the forty-five day time limit.�
He also indicated that complainant told him that, with respect to the
harassment issue (claim (2)), her department was told that �these things
were going to be addressed.� Complainant told her attorney that the EEO
Officer conducted individual interviews of everyone in the department
in 1996, and she assumed the harassment charge would be addressed.
With respect to claim (3), the attorney stated, in pertinent part, that
�[o]n March 1, 1997, there was going to be a departmental retreat for
eight hours, wherein there would be a correction made of some of [the]
things complained about.�
Notwithstanding the grounds for dismissal set forth in the FAD, we
find that the dismissal of claims (2) and (3) was proper pursuant to
29 C.F.R. � 1614.107(a)(2) which states, in pertinent part, that an
agency shall dismiss a complaint which raises a matter that has not
been brought to the attention of an EEO counselor, and is not like or
related to a matter on which the complainant has received counseling.
A later claim or complaint is "like or related" to the original claim
or complaint if the later claim or complaint adds to or clarifies the
original claim or complaint and could have reasonably been expected to
grow out of the original claim or complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990). After a careful review of the record, the
Commission finds that claims (2) and (3) are not like or related to claim
(1), the matter for which complainant received counseling. Claims (2) and
(3) do not add to or clarify claim (1) and cannot be reasonably expected
to grow out of the claim (1) during the investigation. Accordingly,
the agency's final decision dismissing claims (2) and (3) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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. 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
___11-28-00___________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record indicates that, prior to seeking EEO counseling, complainant's
attorney wrote the Commission regarding claim (1), on March 30, 1998.
In July 1998, the Commission referred the matter to the agency for
processing. On July 27, 1998, complainant met with a counselor to
discuss claim (1).
3The agency investigated claim (1) and, on March 27, 2000, issued a final
decision which found complainant had not been discriminated against.
On May 23, 2000, complainant filed a civil action in the United States
District Court for the Northern District of Alabama concerning claim (1).
Therefore, the decision herein will only address claims (2) and (3).