01995772
07-28-2000
Vicki M. Solomon, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Vicki M. Solomon v. Department of Veterans Affairs
01995772
July 28, 2000
.
Vicki M. Solomon,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995772
Agency No. 991377
DECISION
Vicki M. Solomon (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 28, 1999 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> In her
complaint, complainant alleged that she was subjected to discrimination
and harassment on the bases of sex (female), disability (not recorded)
and reprisal (prior EEO activity) when an agency representative withheld
her final paycheck after wrongfully terminating her for her whistle
blowing and EEO activities.
The agency dismissed the complaint pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(2)), noting that complainant failed to
initiate contact with an EEO Counselor within the required time period.
Specifically, the agency concluded that complainant was aware of the
alleged pay discrepancies as early as July 1997, but did not contact an
EEO counselor until March 10, 1999.
On appeal, complainant contends that she complied with the EEO
regulations. She argues that she always felt that she was owed a final
paycheck, but was told by all authorities that she was not. She argues
that she received incorrect legal advice from her attorney who told her
that her final paycheck concerns would be addressed in her appeal to the
Merit Systems Protection Board (MSPB) regarding her removal for allegedly
discriminatory reasons. She includes with her appeal statement, an order
from the MSPB in which the MSPB Administrative Judge (AJ) determined
that the �last pay check� issue was outside the MSPB's jurisdiction and
that it would be excluded from the MSPB hearing. Complainant argues
she did not know what to do after this and that it was not until her
current lawyer reviewed her papers that her belief that she was owed
money was confirmed. After receiving this confirmation, and on the
advice of her current attorney, complaint initiated EEO counseling.
In response, the agency notes that complainant does not contend that
she was unaware of the time limit for initiating contact with an EEO
counselor and that she admits that she was aware of the alleged paycheck
discrepancies in July 1997. The agency asks that its dismissal therefore
be affirmed.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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 (February 11, 1999). "The time
period is triggered as soon as a complainant suspects discrimination
and the complainant may not wait until all supporting facts have become
apparent." Whalen v. Department of Justice, EEOC Request No. 05960147
(September 18, 1997).
In the case at hand, the record supports the agency's conclusion that
complainant suspected that the agency's alleged failure to issue her a
final paycheck was motivated by discrimination in July 1997.
A review of the record reveals, however, that complainant filed an
appeal with the MSPB after her July 1997 termination and attempted
to raise the final paycheck issue in that appeal. The MSPB refused to
consider the paycheck issue, noting that it lacked jurisdiction to do so.
EEOC Regulation 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.302(b)) states that the date
on which a person files a mixed case appeal with the MSPB shall be deemed
to be the date of initial contact with the counselor, should that appeal
be dismissed for jurisdictional reasons. See also Bell v. Department
of Defense, EEOC Request No. 05940741 (June 6, 1995).
Although the exact date of the filing of the MSPB appeal is not noted in
the record, complainant was terminated in July 1997 and timely filed an
MSPB appeal, in which it appears that she raised the final paycheck issue.
As the date on which she filed her appeal with the MSPB is deemed to be
the date of initial contact with the EEO counselor, it appears that her
counselor contact may have been within the required 45-day period.
We have consistently held that the agency bears the burden of
obtaining sufficient information to support a reasoned determination
as to timeliness. See Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992); Gens v. Department of Defense, EEOC
Request No. 05910837 (January 31, 1992). In this case, the agency did not
respond to complainant's contentions that she raised the final paycheck
issue in her MSPB appeal in July 1997, an argument which suggests that
complainant timely initiated EEO contact. Accordingly, we find that
the agency has failed to obtain sufficient information to support its
dismissal for untimely counselor contact.
Therefore, the agency's dismissal of the complaint was improper and the
FAD is hereby REVERSED and REMANDED in accordance with this decision
and the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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, Acting Director
Office of Federal Operations
July 28, 2000
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.