01993915
03-14-2000
Debra E. Folcarelli, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Debra E. Folcarelli, )
Complainant, )
)
v. ) Appeal No. 01993915
) Agency No. 99-0204
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On April 14, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on March 23, 1999,
pertaining to her complaint of unlawful employment discrimination.<1>
In her complaint, complainant alleged that she was subjected to
discrimination when she was not selected for a GS-6 Prosthetic Purchasing
Agent position.
The agency dismissed the complaint for failure to cooperate, because
complainant never provided a basis of discrimination, despite the agency's
February 1, 1999 request.
On appeal, complainant argues that her �best guess� is that she was
discriminated against on the basis of age, but that, �I have no idea of
why the discrimination took place nor is it in my opnion my obligation
to know.� Complainant further contends that it is unfair to burden the
complaining party with the duty to explain why they were harmed.
In the formal complaint, dated November 16, 1998, complainant does not
specify a basis of discrimination, but does state �I feel discriminated
against because I am not a member of the union,� when the union refused
to file a grievance on her behalf. The EEO Counselor's Report, dated
January 28, 1999, also fails to identify a basis of discrimination.
Further, in its February 1, 1999 request for information, the agency
asks that complainant explain whether she suffered discrimination because
of her race, color, religion, sex, national origin, age (+40), physical
or mental disability, or retaliation. The request informed complainant
that she must select one or more of the bases.
In complainant's response to the request, dated February 16, 1999, she
discusses the merits of her complaint at length. She also states that
the person who was selected for the position was close friends with
the selecting official, and won the position because of �nepotism.�
Complainant does not identify any further basis in her complaint.
Although the agency dismissed the complaint for failure to cooperate,
the Commission finds that it is more properly analyzed for whether it
states a cognizable claim.
EEOC Regulation 29 C.F.R. � 1614.103(a) provides that individual and class
complaints of employment discrimination and retaliation prohibited by
Title VII (discrimination on the bases of race, color, religion, sex and
national origin), the ADEA (discrimination on the basis of age when the
aggrieved individual is at least forty years of age), the Rehabilitation
Act (discrimination on the basis of disability), or the Equal Pay Act
(sex-based wage discrimination) shall be processed under EEO Regulations.
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be
subject to retaliation for opposing any practice made unlawful by Title
VII of the Civil Rights Act (Title VII) (42 U.S.C. � 2000e et seq.),
the Equal Pay Act (29 U.S.C. � 206(d)) or the Rehabilitation Act (29
U.S.C. � 791 et seq.) or for participating in any stage of administrative
or judicial proceedings under these statutes.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(1)). 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 22, 1994).
The Commission's authority to address complaints only extends to those
brought under the statutes listed above. Claims filed on the bases of
�nepotism� and (lack of) union membership are not within the purview of
EEO statutes. See Sullivan v. United States Postal Service, EEOC Appeal
No. 01962786 (January 15, 1997) (finding that claim based on nepotism
fails to state a claim); Stem v. United States Postal Service, EEOC Appeal
No. 01951678 (March 1, 1996) (finding that claim based on union membership
was not within the purview of the EEO process); cf McClinton v. Department
of the Air Force, EEOC Request No. 05921032 (May 7, 1993) (finding that
non-selection based on nepotism did not prove discrimination on the
basis of age). Further, complainant had numerous attempts to identify
a basis of discrimination -- in counseling, in her formal complaint,
and in response to the request for information -- but failed to do so.
Complainant's �best guess� of discriminatory animus on the basis of
age, raised for the first time on appeal, is inadequate, particularly
given that complainant admit she still does not suspect a particular
basis of discrimination covered by the EEO Regulations. Accordingly,
her complaint should be dismissed for failure to state a claim.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED for the reasons stated
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 14, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.