01975030
06-15-2000
Virgal A. Dixon, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Virgal A. Dixon v. Department of the Air Force
01975030
June 15, 2000
Virgal A. Dixon, )
Complainant, )
) Appeal No. 01975030
v. ) Agency No. 970265
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Virgal A. Dixon (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of race (Black) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges she
was discriminated against when she was counseled regarding her work
performance on May 8, 1995.<2> The appeal is accepted in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Secretary to the Chief, Drug Testing Division, Armstrong Laboratory
at the agency's Brooks Air Force Base, San Antonio, Texas. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a formal complaint on October 25, 1995.
The agency alleged that it sent complainant the investigative file
with the appropriate appeal rights attached on February 22, 1996 and
that complainant acknowledged receipt of the investigative documents
on February 23, 1996. The record does not contain a copy of attached
appeal rights or a copy of the return receipt indicating when complainant
received notification of her right to a hearing.
There is a dispute in the record concerning the issue of complainant's
hearing request. Complainant alleged that she first sent her request by
facsimile on March 20, 1996, followed by a mailed copy. Complainant also
alleged that she spoke with the Chief EEO Counselor on or about the last
week of March and was told that the request was received, but that when
complainant called back in early April to discuss a different case, she
was told her hearing request was never received. She therefore sent a
new request, which the agency acknowledged receiving on April 15, 1996.
The record contains a copy of a hearing request dated March 20, 1996,
attached to complainant's April 5, 1996 letter explaining the situation
described above, but no evidence of when the March 20, 1996 letter was
originally sent.
The agency alleged that complainant received her notification of appeal
rights on February 23, 1996, and that she therefore had until March 25,
1996, to timely request a hearing. The agency argued that it did not
receive a hearing request until April 15, 1996, and that no one in
the EEO office recalled receiving a faxed letter from complainant on
or around March 20, 1996. The agency therefore denied complainant's
hearing request for untimeliness.
The agency went on to find that complainant failed to establish by a
preponderance of the evidence that she was subjected to race or reprisal
discrimination. The agency concluded that a legitimate nondiscriminatory
reason for counseling complainant on May 8, 1995, had been provided.
Specifically, the agency noted that complainant was counseled due to
her work performance, after she was placed on a Performance Improvement
Plan. The agency then stated that complainant presented no evidence
of pretext beyond bare assertions of discrimination and, accordingly,
issued a finding of no discrimination.
CONTENTIONS ON APPEAL
Complainant makes no further contentions on appeal. The agency,
however, provides a more complete explanation of the hearing request
dispute. The agency alleges that on April 15, 1996, the EEO Office
received a certified letter from complainant requesting a hearing.
Included with this letter was "an original 20 March 1996 letter" with
an envelope attached. The envelope had both a March 22, 1996 postmark
and an April 12, 1996 postmark. The agency then informed complainant,
on May 13, 1996, that her request for a hearing was untimely and that
a final agency decision would be issued without a hearing.
ANALYSIS AND FINDINGS
Where, as here, there is an issue of timeliness, the Commission
has consistently held that the agency bears the burden of obtaining
sufficient information to support a reasoned determination. 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). After a thorough review of the record, we find that the agency
has not met this burden.
Although noting that complainant received the investigative file and
appeal rights on February 23, 1996, the agency provided no evidence to
establish this claim. Moreover, complainant contended that she faxed and
mailed a hearing request on or around March 20, 1996. While complainant
has no proof of this allegation, the agency notes on appeal that when
it received a hearing request on April 15, 1996, the mailing included
a request dated March 20, 1996 and an envelope with two postmarks, one
of which was March 22, 1996. The agency did not provide this envelope
to the Commission. The agency has therefore failed to provide three
key documents; namely, a copy of the notification of appeal rights,
a copy of the certified receipt indicating when complainant received
this notification, and a copy of the March 20, 1996 request with the
attached postmarked envelope to which the agency refers on appeal.
Accordingly, we find that the agency failed to meet its burden of
obtaining sufficient information to support a reasoned determination
as to timeliness. As such, it is the decision of this Commission to
VACATE the agency's final decision and REMAND this matter for further
processing in accordance with this decision and the ORDER set forth below.
We note that complainant's complaint lists color, sex, age, and
disability, in addition to race and reprisal, as bases for her allegations
of discrimination. Although complainant's affidavit makes clear that she
did not intend pursue a color-based discrimination claim, the record is
unclear as to whether complainant intended to pursue the other bases
for discrimination that she initially raised. We advise complainant
that she may, on remand, inform the EEOC administrative judge that she
wishes to include sex, age and/or disability as bases for her complaint.
See Dragos v. United States Postal Service, EEOC Request No. 05940563
(January 19, 1995).
Furthermore, it also appears from her complaint that complainant intended
to allege that she was denied a reasonable accommodation when the agency
placed her on a performance improvement plan, culminating in the May 8,
1995 counseling session, instead of transferring her to a less demanding
position. If this is the case, we advise complainant to inform the EEOC
administrative judge that she wishes to amend her complaint to include
this reasonable accommodation allegation. See 29 C.F.R. � 1614.106(d).
ORDER
The complaint is remanded to the Hearings Unit of the San Antonio
District Office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
San Antonio District Office Hearings Unit within fifteen (15) calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
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
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 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:
June 15, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 While complainant appears to have also alleged that she was removed
from the agency due to discrimination, a review of Commission records
establishes that this allegation was the subject of Dixon v. Department
of the Air Force, EEOC Petition No. 03970073 (April 23, 1997).
In that case, the Commission denied consideration of complainant's
petition for review of the MSPB's determination that her removal was
not discriminatory. The termination allegation has therefore already
been decided and will not be addressed in the current decision. See 64
Fed. Reg. 37, 644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. 1614.107(a)(1)).