Cynthia C. Carr, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 1, 2000
01a00127 (E.E.O.C. Sep. 1, 2000)

01a00127

09-01-2000

Cynthia C. Carr, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Cynthia C. Carr v. Veterans Affairs

01A00127

September 1, 2000

.

Cynthia C. Carr,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A00127

Agency No. 99-3462

DECISION

On September 27, 1999, complainant filed a timely appeal with this

Commission from an agency decision pertaining to her complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.<1> The Commission accepts the appeal in accordance with 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).

Complainant contacted the EEO office regarding claims of discrimination

based on mental disability. Specifically, complainant claimed she

was discriminated against when on May 4, 1999, she received a copy

of the Internal Administrative Review conducted on August 17, 1998,

that did not accurately reflect what occurred during the interview.

According to complainant, the statements made by the reviewer were

�arbitrary, capricious and not based on fact.� Informal efforts to

resolve complainant's concerns were unsuccessful. Subsequently, on July

2, 1999, complainant filed a formal complaint.

On September 14, 1999, the agency issued a decision dismissing

the complaint for failure to state a claim and for stating the same

matter that is pending before the Commission. Specifically, the agency

determined that complainant failed to indicate how she suffered a personal

loss or harm with respect to a term, condition or privilege of employment.

Moreover, the agency determined that the review at issue involved claims

from complainant's sexual harassment complaint (Case No. 98-2410);

that a copy of the review was included in that complaint, which is

pending before an EEOC Administrative Judge (AJ); and that any alleged

inaccuracies could be addressed by the AJ.

On appeal, complainant reiterates her claim. She argues she was harmed

by the agency's delay in providing her with documents, her failure to

receive a 10 year pin, and lack of training. Further, she contends that

the instant case is not the same as the prior case because it concerns

the conduct of the reviewer rather than her supervisor and co-worker.

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))

provides, in relevant part, that an agency shall dismiss a complaint

that fails to state a claim. An agency shall accept a complaint from

any aggrieved employee or applicant for employment who believes that he

or she has been discriminated against by that agency because of race,

color, religion, sex, national origin, age or disabling condition.

29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case

precedent has long defined an "aggrieved employee" as one who suffers a

present harm or loss with respect to a term, condition, or privilege of

employment for which there is a remedy. Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 21, 1994).

A review of the record reveals that the agency conducted an Administrative

Review, independent of the EEO process, regarding claims of sexual

harassment by complainant against her supervisor. In the instant

complaint, complainant argues that she suffered discrimination when

she learned that the report inaccurately summarized the interview.

For example, complainant contends that the interviewer improperly noted

that complainant contradicted herself regarding several incidents.

Further, complainant disputes a statement in the report indicating

that she allowed her boyfriend to speak for her during the interview.

We agree with the agency that the complaint fails to state a claim.

Complainant has failed to show how the alleged inaccuracies resulted

in a personal harm or loss regarding a term, condition, or privilege of

her employment.

Because of our disposition we do not consider whether the complaint

was properly dismissed on other grounds. The Commission notes that

on appeal, complainant raises matters that were not raised during EEO

counseling or in the formal complaint. Complainant is advised to contact

an EEO Counselor if she wishes to pursue further these matters.

Accordingly, the agency's dismissal of the complaint was proper and is

hereby AFFIRMED.

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, Director

Office of Federal Operations

September 1, 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

(if applicable), 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.