01a02319
07-28-2000
Ann M. Bentlage, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Ann M. Bentlage v. Department of Veterans Affairs
01A02319
July 28, 2000
.
Ann M. Bentlage,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02319
Agency No. 99-5318
DECISION
The complainant timely filed an appeal with this Commission from a final
agency action, dated December 9, 1999, which the agency issued pursuant
to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107)<1> The Commission
accepts the complainant's appeal pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's dismissal of
the complainant's November 2, 1999 complaint.
The record demonstrates that the complainant filed several grievances in
September 1999 concerning a verbal counseling the complainant received on
August 23, 1999, regarding her sick leave usage; a reprimand the agency
proposed on August 23, 1999, and issued the complainant on September 3,
1999, concerning the complainant's conduct on August 17, 1999; and
other matters relating to the counseling and reprimand. The record
also demonstrates that the grievances were pursued through a negotiated
grievance procedure which permitted claims of discrimination to be raised.
Therefore, the Commission finds that the agency properly dismissed these
claims pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(4)).
The record further demonstrates that the complainant's EEO Counselor
contact was based in part on the complainant's receipt of copies of
three Reports of Contact from her supervisor on August 24, 1999, which
described the conduct that was the basis of the proposed reprimand.
On appeal, the complainant's representative contends that the supervisor
created a hostile work environment for the complainant when he solicited
the Reports of Contact, thereby encouraging the complainant's coworkers to
strike out against her, and when he took the other actions that were the
subject of the seven grievances. The Commission finds that the Reports
of Contact were inextricably intertwined with the reprimand and, thus,
should have been contested as part of the grievance on the issuance
of the reprimand. Therefore, the agency should have dismissed this
matter pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1)) on
the grounds that it constituted a collateral attack on the results of the
grievance process. As indicated above, the agency also properly dismissed
the matters that were the subject of the seven grievances. For these
reasons, the Commission finds that the complainant's complaint fails
to state a hostile work environment claim. Finally, the representative
contends that the supervisor's purported actions were in retaliation for
the complainant's filing an prior EEO complaint against him two years ago.
This claim also should have been raised in the grievance process once the
complainant elected to contest the supervisor's actions in that forum.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.301(a)).
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 (S0400)
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, Acting Director
Office of Federal Operations
July 28, 2000
__________________
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, 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 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.