Erlinda Escarez, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01a03508 (E.E.O.C. Jul. 19, 2000)

01a03508

07-19-2000

Erlinda Escarez, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Erlinda Escarez v. Department of Veterans Affairs

01A03508

07-19-00

.

Erlinda Escarez,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03508

Agency No. 99-4126

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated February 29, 2000 dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil

Rights Act of 1964, 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.<1> In her complaint, complainant alleged that she

was subjected to discrimination on the bases of race (Filipino) and age

(DOB: June 12, 1944) when: 1) on June 15, 1999, she was harassed because

her supervisor ordered the other nurse in her unit to go to another

unit, so complainant was left to care for many patients by herself; 2)

in September of 1997, management failed to promote her; 3) in December

of 1998, her performance appraisal was affected; and, 4) on January 26,

1999, she was informed that she would be reassigned from the GI lab

to the Urgi Center effective February 8, 1999. The agency dismissed

claim 1 for failing to state a claim of harassment, and claims 2, 3,

and 4 for stating the same claims as those found in one of complainant's

earlier complaints. This appeal, by complainant, followed.

On appeal, no persuasive arguments or evidence have been presented which

demonstrate that claim 1 states a claim. Further, a review of the record

reveals that claims 2, 3, and 4 do state the same claims as those found

in an earlier complaint, Agency No. 99-0333. Accordingly, the agency's

final decision dismissing complainant's complaint is 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, Acting Director

Office of Federal Operations

__07-19-00________________

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.