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