01A43909_r
11-23-2004
Edna I. Klausz, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Edna I. Klausz v. Department of Veterans Affairs
01A43909
November 23, 2004
.
Edna I. Klausz,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43909
Agency No. 200M05542004100637
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated May 4, 2004, dismissing 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of age
and reprisal when:
a. On March 1, 2003, complainant was taken off the Nursing Home Care
Unit for filing incomplete shift reports as the Charge Nurse.
In March 2003, complainant's Nurse Manager told complainant she was not
mentally fit for an RN and complainant was assigned menial duties.
On June 4, 2003, complainant was given a fitness for duty exam. After the
exam, the doctor told complainant she was unable to do multi-tasking.
On July 23, 2003, complainant took a psychological fitness for duty exam.
The psychologist told complainant that her I.Q. and education level
don't match.
On November 5, 2003, complainant was given a Notice of Separation for
Disability, effective November 19, 2003.
The agency dismissed claim (A)(a. - d.) pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency found that none
of the incidents alone, or viewed together, were either sufficiently
severe or pervasive to state a claim of harassment. The agency further
dismissed claim (A)(a. - d.) pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO Counselor contact. The agency found none of the
incidents occurred within 45 days of complainant's November 18, 2003
EEO contact date.
The agency dismissed claim (B) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim and pursuant to 29 C.F.R. � 1614.107(a)(5)
on the grounds that claim (B) alleges harm in connection with a proposed
personnel action that has not yet occurred. The agency found that as
of the date of its final decision, complainant remained on official leave.
On appeal, complainant argues that claim A is a series of incidents of
harassment based on age which created a hostile work environment for
complainant from March 2003 through November 2003, culminating in the
agency's efforts to remove her from the agency. Complainant also states
that she was removed effective July 9, 2004, and that she is filing a
new complaint of discrimination based on that action.
We note that when a complaint is filed on a proposed action and the agency
subsequently proceeds with the action, the action is considered to have
merged with the proposal. See Siegel v. Department of Veterans Affairs,
EEOC Request No. 05960568 (October 10, 1997).
In its statement on appeal, the agency acknowledges that complainant's
separation from the agency's service was effectuated on July 9, 2004.
The Commission has confirmed that complainant has also filed a new
complaint (agency case number 200M-0554-2004103950) regarding her
separation. The claims accepted for investigation in that complaint
squarely encompass the claims of the instant complaint. In light of
the accepted claims of agency case number 200M-0554-2004103950, we find
that the instant complaint is properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1) for stating the same claim as is pending with the agency.
The agency's dismissal of the instant complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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
November 23, 2004
__________________
Date