0120063266
10-09-1008
Desiree M. Brown, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Desiree M. Brown,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200632661
Hearing No. 340-2005-00378X
Agency No. 200N-0605-2004-103504
DECISION
Complainant filed an appeal from the agency's March 8, 2006 final order
concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
BACKGROUND
The record reveals complainant was formerly employed as a Financial
Accounts Technician, GS-502-6/7 in the Medical Care Cost Recovery unit
at the agency's Loma Linda facility.
Complainant filed an EEO complaint dated July 29, 2004, alleging that
she was discriminated against on the bases of race (African-American),
sex (female), age (46), and in reprisal for prior protected EEO activity
when:
1. Since February 2004, copies of a Merit Systems Protection Board
(MSPB) Appeal filed against another agency and other derogatory reports
that complainant was never given the opportunity to respond to, have
been maintained in her official personnel file (OPF).
2. On June 10, 2004, complainant became aware that she was denied
due process afforded by regulations, i.e., management failed to place her
on administrative leave for a period of six months during the proposed
removal process (proposed removal received March 2, 2004).
3. On June 10, 2004, complainant became aware that management had
violated regulations by falling to give her a 30-day advance notice of
her last day of employment when she received a letter informing her that
her removal was effective the following day - June 11, 2004.
4. On June 10, 2004, complainant became aware that management had
violated regulations by failing to mail her notice of removal via some
form of delivery verification to ensure/verify her receipt.
5. In June 2004, complainant became aware that Person A, a Human
Resources Specialist, had informed several prospective employers that
complainant was removed on June 11, 2004.
6. On June 10, 2004, complainant became aware that management had
terminated her medical and life insurance benefits without giving her
the required 30-day advance notice and without sending her notification
via some form of delivery verification to ensure/verify her receipt.
7. On March 31, 2004 to present, complainant's former supervisor,
Manager 1, failed to provide complainant with her final annual performance
appraisal.
8. On June 18, 2004 to present, management has failed to provide
complainant with her Leave and Earnings Statement for her final paycheck.
9. On July 2, 2004, complainant became aware that due to derogatory
information received from Person B, Human Resources, her unemployment
insurance benefits were denied.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On November 10, 2005, the agency filed a motion
for a decision without a hearing. Thereafter, the AJ issued a decision
without a hearing on January 20, 2006, noting complainant's rebuttal
to the agency's motion for a decision without a hearing in which she
simply stated "I do not agree." The AJ entered judgment in favor of
the agency. The agency subsequently issued a final order on March 8,
2006, fully implementing the AJ's finding that complainant failed to
prove that she was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
With regard to issue 1, the agency states that copies of the MSPB decision
and other referenced documents were not filed or retained in her OPF.
With regard to issue 2, the agency notes that there is no requirement
that complainant be placed on administrative leave for six months upon
receipt of a proposed notice of removal. With regard to issue 3, the
agency notes complainant was placed on paid administrative leave beginning
March 2, 2004, the date the proposed removal notice was issued, through
June 11, 2004, the effective date of complainant's removal. With regard
to issue 4, the agency notes it sent complainant a removal notice by
regular mail. The agency notes complainant acknowledges receipt of this
notice and timely filed an appeal with the MSPB challenging the removal.
With regard to issue 5, the agency maintains it never informed anyone
outside the agency of complainant's removal. With regard to issue 6,
the agency notes it sent complainant benefit information regarding her
medical and life insurance. The record contains a copy of the forms sent
to complainant informing her that her health and life insurance benefits
are ending due to her separation from Federal Service and advising her of
conversion rights. Complainant acknowledges she received notice of the
termination of her health and life insurance benefits on June 10, 2004,
by regular mail. With regard to issue 7, the agency states complainant
was not given a performance rating for the period ending March 31,
2004, since she was placed off-duty on administrative leave beginning
March 2, 2004. With regard to issue 8, the agency maintains it mailed
complainant the relevant Leave and Earnings statement. Upon review,
we find that complainant failed to show that any of the agency's actions
with regard to issues 1-8 were a pretext for discrimination.
With regard to issue 9, we note in her formal complaint complainant claims
that the information the agency provided to the California Employment
Development Department (EDD) was erroneous. The agency acknowledges
it contested complainant's entitlement for unemployment compensation.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). Upon review, we find complainant
is challenging the decision made by the California EDD. The proper
forum for complainant to have raised her challenges to actions which
occurred during the processing of her unemployment benefits was at that
proceeding itself. Accordingly, we find issue 9 fails to state a claim
within the jurisdiction of the EEOC. We note that the present case does
not involve a challenge to the agency's removal of complainant.
Accordingly, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (S0408)
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 (Z0408)
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
October 3, 1008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120063266
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120063266