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.