Laura A. Jackson, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 19, 2003
01A21199 (E.E.O.C. Mar. 19, 2003)

01A21199

03-19-2003

Laura A. Jackson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Laura A. Jackson v. Department of Veterans Affairs

01A21199

03-19-03

.

Laura A. Jackson,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A21199

Agency No. 200O7-654-2001300263

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision, dismissing her complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of disability (physical and mental) and reprisal for prior

EEO activity when:

Claim A.

On October 11, 1997, she was forced to resign due to her disability;

Claim B.

On or about October 1, 2002, EEO counselor, Office of Resolution

Management (ORM) Palo Alto Field Office, denied her request for an

extension during counseling to obtain additional information in support

of your complaint;

On or about June 21, 2001, an EEOC decision advised her to return to

the agency to process the issue of involuntary resignation using the

date of contact of October 26, 1997. She stated that the ORM did not

process her formal complaint;

Since April 2001, she had not received a response from ORM Office of

Policy and Compliance, Washington, D.C., regarding her complaint of

dissatisfaction with the EEO process;

In February 2001, the agency would not provide an agency code identifier

that resulted in her Office of Workers' Compensation Program (OWCP)

Form, CA-2, being incomplete and unprocessed; thus, she was unable to

provide new evidence on her OWCP claim;

On or about February 2001, an EEO Counselor, ORM West Los Angeles Field

Office, was offensive to her and refused to give her anything in writing

so that she could file a formal complaint to the Merits System Protections

Board (MSPB). Subsequently, she filed an appeal to the MSPB to get her

job back;

On or about June/July 1998, the OWCP determined that she had an emotional

problem. She stated that the agency denied that she had a paper cut on

August 31, 1996;

The agency and/or the ORM Palo Alto Field Office refused to process

and misstated the bases on her EEO complaints, dated October 7, 1997,

and October 23, 1997; and

From April 1995 through May 1995, the agency retaliated against her

because of her husband's involvement in the EEO process and her disability

and would not promote her.

In its final agency decision, the agency dismissed claim A pursuant to 29

C.F.R. � 1614.107(a)(1), for stating the same claim that is pending before

or has been decided by the agency or the EEOC. The agency determined

that claim B, Nos. 1, 2, 3, 5, and 7 alleged dissatisfaction with the

processing of a previously filed complaint, and the agency dismissed

these complaints pursuant to 29 C.F.R. � 1614.107(a)(8). Finally,

the agency dismissed claim B, Nos. 4, 6, and 8 pursuant to 29 C.F.R. �

1614.107(a)(2), because complainant failed to contact an EEO Counselor

in a timely manner.

Claim A

In Laura A. Jackson v. Department of Veterans Affairs, EEOC Petition

No. 03A10037 (June 21, 2001), the Commission observed that the MSPB

denied jurisdiction over complainant's mixed case appeal, alleging that

she involuntarily resigned, which constituted a constructive discharge.

We noted that, when the MSPB has denied jurisdiction in such matters,

there is little point in continuing to view the matter as a "mixed case"

as defined by 29 C.F.R. � 1614.302(a). Thus, the case was considered a

"non-mixed" matter which required processing. See generally Schmitt

v. Department of Transportation, EEOC Appeal No. 01902126 (July 9, 1990);

29 C.F.R. � 1614.302(c)(2)(i) and (ii). The Commission administratively

closed EEOC Petition No. 03A10037 and referred the matter to the agency

for further processing.<1>

Inasmuch as the agency asserts that complainant states the same claim

that has been decided by the agency on February 28, 2000, the agency

fails to recognize that complainant timely filed her mixed case appeal

prior to filing her January 5, 2001 EEO complaint. Because complainant

first filed a mixed case appeal, the agency should have promptly notified

complainant in writing of her right to contact an EEO counselor within 45

days of receipt of the MSPB decision, finding that it lacked jurisdiction,

and the agency should have further notified her of her right to file an

EEO complaint. See 29 C.F.R. � 1614.302(b). Therefore, pursuant to our

order in EEOC Petition No. 03A10037, requiring the agency to process

complainant's claim as a "non-mixed" matter, the agency's decision to

dismiss claim A for stating the same claim that is pending before or has

been decided by the agency or the EEOC was improper. The decision is

reversed and remanded for further processing pursuant to the Order below.

Claim B, Nos. 1, 2, 3, 5, and 7

EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides for the dismissal of

spin-off complaints, which are complaints about the processing of existing

complaints. It provides instead that complaints about the processing of

existing complaints should be referred to the agency official responsible

for processing, and/or processed as part of the original complaint, as

set forth in Section IV, D of the Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-14 (November 9, 1999).

Therefore, we affirm the agency's finding with respect to claim B,

Nos. 1, 2, 3, 5, and 7. We note that the agency official responsible

for the quality of complaints processing should earnestly attempt to

resolve complainant's dissatisfaction with the complaints process as

early and expeditiously as possible. EEO MD-110, 5-25.

Claim B, Nos. 4 and 6

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. See Wills

v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 25, 1993). With respect to claim B, No. 4,

complainant alleged that, in February 2001, the agency would not provide

an agency code identifier that resulted in her OWCP Form, CA-2, being

incomplete and unprocessed; thus, she was unable to provide new evidence

to support her OWCP claim. With respect to claim B, No. 6, complainant

alleged that, on or about June/July 1998, OWCP determined that she had

an emotional problem. She stated that the agency denied that she had

a paper cut on August 31, 1996. The proper forum for complainant to

have raised her challenges to actions which occurred during the OWCP

proceeding was at that proceeding itself. It is inappropriate to now

attempt to use the EEO process to collaterally attack actions which

occurred during the OWCP process.

Claim B, No. 8

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints

of discrimination be brought to the attention of the Equal Employment

Opportunity counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel action,

within forty-five (45) days of the effective date of the action.

Complainant did not initiate contact with an EEO counselor until August

31, 2001, which is more than 45 days after the agency's action. In claim

B, No. 8, complainant alleged that, from April 1995 through May 1995,

the agency retaliated against her because of her husband's involvement

in the EEO process and her disability and would not promote her.

Complainant alleges on appeal that she filed her earliest informal EEO

complaint on October 14, 1997 on issues relating to disability and

involuntary resignation. Even assuming that complainant alleged in

the October 14, 1997 informal EEO complaint that she was not promoted,

she fails to present evidence that she contacted an EEO counselor within

45 days of the April 1995/May 1995 incident. Therefore, we find that

the agency properly dismissed claim B, No. 8 for untimely EEO counselor

contact pursuant to 29 C.F.R. � 1614.105(a)(1).

Accordingly, we AFFIRM the agency's decision with respect to claim B,

Nos. 1-8, and we REVERSE and REMAND claim A for continued processing in

accordance with this decision and the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claim, namely on October

11, 1997, complainant was forced to resign due to her disability, in

accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to

the complainant that it has received the remanded claim within thirty (30)

calendar days of the date this decision becomes final. The agency shall

issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

___03-19-03_______________

Date

1 The order in EEOC Petition No. 03A10037

stated:

Petitioner is advised that by operation of 29 C.F.R. � 1614.302(b),

the agency is required to process her allegations of discrimination as a

"non-mixed" matter pursuant to 29 C.F.R. � 1614.105 et seq. The agency

shall notify the petitioner of the right to contact an EEO counselor

within forty-five (45) days of receipt of this decision, and to file an

EEO complaint, subject to 29 C.F.R. � 1614.107. The date on which the

petitioner filed the appeal with the MSPB shall be deemed the date of

initial contact with the EEO counselor. Petitioner shall have the right

to file a civil action in an appropriate United States District Court,

based on the decision of the Merit Systems Protection Board, within thirty

(30) calendar days of the date that this decision is received.