Alice S. Ritchie, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 4, 2003
01A22248_r (E.E.O.C. Mar. 4, 2003)

01A22248_r

03-04-2003

Alice S. Ritchie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Alice S. Ritchie v. Department of Veterans Affairs

01A22248

March 4, 2003

.

Alice S. Ritchie,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A22248

Agency No. 200H-0632-2001300281

DECISION

Complainant filed an appeal with this Commission from the agency's

decision dated February 11, 2002, 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. In her

complaint, complainant alleged that she was subjected to discrimination

in reprisal for prior EEO activity when: (1) on August 8, 2001, during a

review of her Official Personnel Folder (OPF), she discovered that several

documents were excluded from her OPF, which she felt adversely affected

the decision of the Nurse Professional Standards Board to recommend

her to Nurse III; and (2) from June 6, 2001 through September 24, 2001,

her supervisor changed her tour of duty separating her two consecutive

days off.

The record reveals that complainant initiated contact with an EEO

Counselor on August 24, 2001. However, in a letter to the agency,

dated September 24, 2001, complainant stated, �I am withdrawing my EEO

complaint of August 24, 2001 as discussed with you today 9/20/01.� In

another letter to the agency, dated September 25, 2001, complainant

informed the agency that she was rescinding her withdrawal. Thereafter,

complainant filed a formal complaint of discrimination on October 5, 2001.

On January 10, 2002, complainant was mailed a Request for Additional

Information letter and asked to provide her reason(s) for rescinding

her complaint. In a statement dated January 24, 2002, complainant's

representative responded that complainant read on the facility's bulletin

board that the U.S. Office of Special Counsel (OSC) handles allegations

of Prohibited Personnel Practice and felt that her allegation concerning

the alteration of her OPF was a prohibited personnel practice and as

such filed a complaint with them. By letter dated September 18, 2001,

from OSC to the complainant, she was informed that it was not their

policy to act on allegations such as hers as they are more appropriately

resolved through the EEO process. Upon notification of their decision,

complainant rescinded her withdrawal.

In its final decision, the agency denied complainant's request to

reinstate her complaint, finding that she withdrew her complaint in a

letter dated September 20, 2001.

The Commission has found that where a complainant "knowingly and

voluntarily withdrew her complaint...the Commission considers the

matter to have been finally abandoned." See Tellez v. Department

of Transportation, EEOC Request No. 05930805 (February 25, 1994).

The Commission has held that a complainant may not request reinstatement

of an informal complaint unless the complaint was withdrawn pursuant to

a settlement agreement. See Allen v. Department of Defense, EEOC Request

No. 05940168 (May 25, 1995). Once a complainant has withdrawn an informal

complaint, absent a showing of coercion, a complainant may not reactivate

the EEO process by filing a complaint on the same issue. Id. To allow such

a practice would, in effect, extend the limitations period for filing a

formal complaint and subvert the need for timeliness and efficiency in

the EEO administrative process.

Upon review, we find that the record supports a finding that complainant

voluntarily withdrew her complaint on September 20, 2001. We note that

the record contains no evidence reflecting that complainant was coerced

into withdrawing her informal complaint. Consequently, the Commission

finds that the agency's decision to deny complainant's request to

reinstate her withdrawn complaint was proper.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

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 (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

March 4, 2003

__________________

Date