Debra E. Folcarelli, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 14, 2000
01993915 (E.E.O.C. Mar. 14, 2000)

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.