01993929
11-28-2000
Guy Delahoussaye, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Guy Delahoussaye v. Veterans Affairs
01993929
November 28, 2000
.
Guy Delahoussaye,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01993929
Agency No. 98-3381
DECISION
Complainant filed an appeal with this Commission from an agency decision
dated February 23, 1999, pertaining to his complaint of unlawful
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.<1> The
Commission accepts the appeal in accordance with 29 C.F.R. �1614.405.
On October 27, 1997, complainant contacted the EEO office regarding
claims of discriminatory harassment based on race, color, national
origin, and reprisal. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on January 6, 1998, complainant filed
a formal complainant. In its decision, the agency framed the claim
as follows:
Complainant was harassed on October 21, 1997 when he was processing his
OWCP claim and it resulted in racial remarks, �that spic or whatever
he is ain't getting paid nothing.� The processing by the VA Employee
Health Office - Injury Compensation Program resulted in a hostile working
environment and subsequently lead to complainant's claim for Ciroical
injury being denied by the Department of Labor.
On February 23, 1999, the agency issued a decision dismissing
the complaint on the grounds that it stated the same claim that is
pending before or has been decided by the agency. Specifically, the
agency determined that on August 19, 1997, complainant filed a formal
complainant, based on race and reprisal, alleging he was harassed during
the processing of his OWCP claim. The prior case (Case No. 98-0020)
is currently pending a hearing. The agency further determined that
the complaint failed to state a claim. With respect to the derogatory
comments, the agency found that it was an isolated incident and therefore
insufficient to state a claim of harassment. Regarding complainant's
assertion that the alleged statement lead to the denial of his OWCP claim
by the Department of Labor, the agency determined that the denial was
outside the VA's jurisdiction. Therefore, the claim that the agency's
processing lead to the OWCP denial was an impermissible collateral
attack on the OWCP's decision and failed to state a claim.
On appeal, complainant argues that the alleged harassment was pervasive
and therefore states a claim. In addition, he contends that the OWCP
claims addressed in the prior complaint are not the same as those in the
instant complaint and therefore, although the complaints are similar,
they are distinct.
Complainant's attorney<2> explains that the instant case concerns acts
occurring on October 21, 1997, while the prior complaint is based on
acts that took place prior to May/June 1997. Moreover, complainant's
attorney argues that since the instant case cites reprisal based on the
earlier case, it cannot be viewed as the same claim. With respect to
the alleged remark, he maintains that it is evidence of discriminatory
animus and was not an �isolated incident,� but rather, occurred in the
context of deliberately mishandling complainant's workers' compensation
claim paperwork. According to complainant's attorney, the claim is not a
collateral attack, noting that any issues regarding the merits of OWCP's
decision are being addressed through the Department of Labor.
In response, the agency notes that during a seven month period,
complainant filed four separate OWCP claims. According to the agency,
station officials did not controvert any of the claims, and they were
timely filed and accepted for processing. Complainant filed the prior
complaint (Case No. 98-0020) on how the first and second OWCP claims
were processed. The identified remark was also raised. The agency
contends that the instant complaint addresses complainant's third OWCP
claim, wherein complainant alleges that station officials failed to
provide him with a copy of Form 9995, denied having received the CA01
form he submitted, and made the identified comment. Although the agency
admits that the form matters were not specifically raised in the prior
complaint, it argues that they are related to the broader claim of
discriminatory processing of OWCP claims that was reviewed during the
investigation of the prior complaint. In addition, the agency maintains
that complainant has not shown how he was harmed by the alleged incidents.
According to the agency, the relevant documents were timely submitted to
the Department of Labor, and his claims are currently under consideration.
Only the second OWCP claim was rejected, and that matter is the subject
of Case No. 98-0020.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
Here, we find that complainant has failed to show how he was separately
aggrieved by the claim in the instant case. Based on a review of the
record, complainant's claim of discrimination in the processing of his
OWCP claims was investigated during his prior complaint. We note that
the alleged racial remark was also addressed in the prior investigation.
Although the instant case may concern one of four OWCP claims filed,
we find it is inextricably intertwined with the matter presented in the
prior EEO Complaint (Case No. 98-0020). Moreover, the Investigative
Report for the earlier complaint reflects that all four of complainant's
OWCP claims were considered. We find complainant's claim in the present
case to be part of his broader claim of discrimination in the processing
of his workers' compensation claims, which is already before the agency.
Therefore, the agency's dismissal of the complaint for stating the
same claim that is pending before the agency was proper. Because of
our disposition we do not consider whether the complaint was properly
dismissed for failure to state a claim.
Accordingly, the agency's decision dismissing the complaint was proper
for the reasons set forth herein and is hereby AFFIRMED.
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 (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 28, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In a letter dated May 4, 1999, complainant's attorney contends
that although he is complainant's designated representative he was
never served with the agency decision. Citing the EEOC Regulations,
complainant's attorney notes that the relevant time frames are computed
from the time of receipt by the attorney. He suggests that the matter
be remanded to the agency, he be properly served with the decision, and
given time to file an appeal. Since a review of the record indicates
that complainant received a copy of the decision, complainant's attorney
learned of the decision, and subsequently filed an appeal brief with
the Commission, we see no need to remand the matter to the agency.
Accordingly, complainant's appeal will be addressed at this time.