Guy Delahoussaye, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 28, 2000
01993929 (E.E.O.C. Nov. 28, 2000)

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.