01984383_r
06-29-1999
Thomas Gadsden, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Thomas Gadsden, )
Appellant, )
)
v. ) Appeal No. 01984383
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On May 4, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated, March 31, 1998, received by
appellant on April 16, 1998, pertaining to his 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. The Commission accepts
appellant's appeal in accordance with EEOC Order No. 960, as amended.
In his complaint, appellant alleged that he was subjected to
discrimination on the basis of retaliation. While not specifying
the incident of alleged discrimination in his formal complaint, the
EEO Counselor's Report indicates that appellant contacted a Counselor
regarding an incident in the kitchen area when appellant asked why another
employee was making coffee and the Supervisor entered the conversation,
the exchange became heated, and the Supervisor purportedly came very
close to appellant's face.
The agency dismissed his complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(d), for raising a matter previously raised in a
grievance.
EEO Regulation 29 C.F.R. �1614.107(d) provides that an agency may
dismiss a complaint or a portion of a complaint where the complainant
has raised the same matter in a negotiated grievance procedure that
permits allegations of discrimination.
While it is clear from the record that appellant did previously pursue
a grievance on the same matter appellant is attempting to raise in the
EEO process, the agency failed to submit evidence in the record to show
that allegations of discrimination may be raised through the grievance
process. Clearly, it is the burden of the agency to have evidence or
proof to support its final decision. See Marshall v. Department of the
Navy, EEOC Request No. 05910685 (September 6, 1991). Accordingly, the
Commission determines that the agency's decision to dismiss appellant's
complaint was improper and is REVERSED. Appellant's complaint is REMANDED
to the agency for further processing in accordance with this decision
and applicable regulations.
ORDER
The agency is ORDERED to take the following actions:
(1) supplement the record with evidence that allegations of discrimination
may be raised in the grievance procedure. If such evidence is added to
the record, the agency shall issue a new final decision addressing the
complaint within (30) calendar days of the date this decision becomes
final;
(2) If the record is not supplemented as specified in provision (1) above,
the agency shall resume processing appellant's complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it is resuming the processing of appellant's complaint within (30)
calendar days of the date this decision becomes final.
A copy of the agency's new final decision or notice to appellant
acknowledging that the complaint is being processed 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 (R0993)
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. 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. 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 (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 29, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations