Ida M. Foster, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 25, 2000
01993423 (E.E.O.C. May. 25, 2000)

01993423

05-25-2000

Ida M. Foster, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Ida M. Foster, )

Complainant, )

)

v. ) Appeal No. 01993423

) Agency No. 98-3945

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On March 24, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) pertaining to her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>

The Commission accepts the appeal pursuant to 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405), and for the

reasons set forth below, we AFFIRM the FAD's DISMISSAL of the complaint.

On October 22, 1998, complainant contacted the EEO office regarding claims

of discrimination and harassment based on race, color, age, disability,

and reprisal. Informal efforts to resolve her concerns were unsuccessful.

Accordingly, on December 7, 1999, complainant filed a formal complaint.

The agency framed the claims as follows:

1) Continuing violation and infliction of emotional distress for wrongful

termination on January 3, 1997; and,

2) Continuing violation and infliction of emotional distress when EEO

counselor prepared an unfair counseling report regarding a prior

complaint and when the agency listed the counselor as a proposed

witness in a hearing before an EEOC Administrative Judge (AJ).

In its FAD, the agency dismissed claims 1 and 2 on the grounds that they

stated the same claim raised in a prior complaint (Complaint No. 98-0074,

and that is pending before an AJ under Hearing No. 370-98-2311X.

The agency also dismissed claim 2 on the alternative grounds of failure

to state a claim.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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.

Our review of the record confirms that the matter described in claim 1

is the same matter processed by the agency in a previous complaint filed

by complainant (Complaint No. 98-0074), and that at the time the instant

complaint was filed, this matter was pending before an AJ under Hearing

No. 370-98-2311X. Accordingly, we AFFIRM the FAD's dismissal of claim 1.

While the agency dismissed claim 2 for failure to state a claim, the

Commission determines that this claim is properly analyzed pursuant to 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as 29

C.F.R. � 1614.107(a)(8)). EEOC Regulation 29 C.F.R. � 1614.107(a)(8)

provides that the agency shall dismiss a complaint that claims

dissatisfaction with the processing of a previously filed complaint.

The record reflects that claim 2 addresses complainant's dissatisfaction

with the processing of a prior complaint when an agency EEO Counselor

was purportedly listed as a proposed witness in a hearing before

an AJ. The Commission determines that this claim clearly addresses the

dissatisfaction with the processing of a previously filed EEO complaint.

Accordingly, the agency's dismissal of claim 2 was proper and is AFFIRMED.

Because we affirm the agency's decision to dismiss claim 2 for the reason

stated herein, we find it unnecessary to address the agency's decision

to dismiss this claim on alternative grounds.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 25, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.