Frances R. Duffy, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 23, 2001
01996991 (E.E.O.C. Feb. 23, 2001)

01996991

02-23-2001

Frances R. Duffy, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Frances R. Duffy v. Department of Veterans Affairs

01996991

February 23, 2001

.

Frances R. Duffy,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01996991

Agency No. 99-3409

DECISION

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

August 12, 1999 decision to dismiss her complaint of unlawful employment

discrimination. In its dismissal, the agency defined complainant's

claims as alleging complainant was subjected to discrimination in

reprisal for prior EEO activity when on June 29, 1999, she inquired

about the status of an award submitted in August 1998, and was told by

her immediate supervisor that she did not have the right to know whether

or not she was going to receive a monetary award. Complainant still

has not received further information about the award.

The agency dismissed the complaint for failure to state a claim, finding

no harm from the supervisor denying complainant information about the

award. On appeal, complainant argues that she never has received an

award, despite being submitted for consideration on numerous occasions.

Complainant contends that the agency's �non-action� conflicts with the

normal and customary recognition afforded to nurses who distinguish

themselves beyond their performance standards.

On its �counseling intake� form, an agency official noted that complainant

was �submitted for a special award, but nothing has come of it.� The

record also contains complainant's formal complaint, dated August

2, 1999. Therein, complainant checked-the-box labeled �award,� and

added �no action. Submitted 8/98 and 12/98.� For corrective action,

complainant sought �approval for award, [and] to receive a step increase

or [the] maximum cash award.�

EEOC Regulations require the dismissal of complaints that fail to state

a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant

must allege present harm inflicted on the basis of race, sex, religion,

national origin, age, disability, or prior protected activity. See Diaz

v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994).

By confining complainant's claim to the supervisor's refusal to give

complainant information about the award, the agency improperly defined

the complaint. Complainant also believes that she has been denied the

special performance award, and requests approval for the award and its

concomitant benefits. Claims concerning the denial or withholding of an

award, if proven true, would render complainant aggrieved. Therefore,

complainant stated a cognizable claim.

CONCLUSION

Accordingly, the agency's dismissal is REVERSED, and the claims are

REMANDED for further investigation.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant also has the right

to file a civil action to enforce compliance with the Commission's order

prior to or following an administrative petition for enforcement. See 29

C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action

for enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

February 23, 2001

__________________

Date