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.