Harriet B. Brown, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 20, 1999
01972739 (E.E.O.C. Jan. 20, 1999)

01972739

01-20-1999

Harriet B. Brown, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Harriet B. Brown v. Department of Veterans Affairs

01972739

January 20, 1999

Harriet B. Brown, )

Appellant, )

)

v. ) Appeal No. 01972739

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

___________________________________)

DECISION

Appellant filed the instant appeal from the agency's decision dated

February 2, 1997 dismissing a portion of appellant's complaint. In the

February 2, 1997 decision the agency accepted the portion of the complaint

alleging that appellant was not selected for the position of Food Service

Worker Foreman on July 12, 1995.

The Commission finds that the allegations in the complaint defined by

the agency as: (1) admonishment in February 1995; and (2) harassment

on January 20, 26, 28 and March 1 and 9, 1995; were properly dismissed

pursuant to 29 C.F.R. �1614.107(b) for untimely contact of an EEO

Counselor. Furthermore, appellant's reference on appeal to not being

promoted from September 1991 until August 1994 is not specifically listed

in the complaint, and, as the agency states, is untimely raised with

an EEO Counselor. Therefore, to the extent that appellant is claiming

that the agency's failure to promote him from September 1991 until

August 1994 is included in the complaint, we find that this allegation

is also properly dismissed for untimely EEO Counselor contact pursuant

to �1614.107(b).

The Commission finds that allegations 1 and 2 and the failure to

promote until August 1994 allegation occurred more than 45 days prior

to appellant's initial contact of an EEO Counselor on June 26, 1995 and

that appellant should have reasonably suspected discrimination by the

date of the last incident, March 9, 1995. Because of our finding that

appellant should have reasonably suspected discrimination by March 9, 1995

regarding allegations 1 and 2 and the failure to promote until August

1994 allegation, we find that these allegations are not timely under

the continuing violation theory. Furthermore, we find that appellant

has not presented any persuasive evidence showing that she contacted

the EEO Office with the intent of pursuing the EEO process regarding

the instant dismissed matters prior to June 26, 1995.

Appellant also alleged that she was discriminated against when she

accepted a check from a patient. The agency found that appellant's

acceptance of a check was one of the reasons given for appellant's

removal from the agency effective September 22, 1995. The agency found

that the removal issue was appealed to the Merit Systems Protection

Board (MSPB). The agency therefore dismissed this allegation pursuant

to �1614.107(d) on the grounds that appellant elected to raise this

allegation with the MSPB. The Commission finds that this allegation

concerning the acceptance of the check does not, by itself, render

appellant aggrieved. Thus, by itself, the check allegation is properly

dismissed for failing to state a claim pursuant to �1614.107(a). To the

extent that the check allegation merges with the removal issue, we find

that the removal issue was the subject of an Initial Decision by the

MSPB on June 11, 1996. Therefore, we find that the check allegation as

merged with the removal was properly dismissed pursuant to �1614.107(d)

(election to pursue non-EEO process).

Because of our disposition we do not address the agency's other reasons

for dismissing a portion of the complaint.

The agency's decision dismissing a portion of the complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

January 20, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations