Lilieth Clarke, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 18, 2000
01990424 (E.E.O.C. Apr. 18, 2000)

01990424

04-18-2000

Lilieth Clarke, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Lilieth Clarke v. Department of Veterans Affairs

01990424

April 18, 2000

Lilieth Clarke, )

Complainant, )

)

v. ) Appeal No. 01990424

Togo D. West, Jr., ) Agency No. 98-0720

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On October 20, 1998, complainant filed a timely appeal with this

Commission from an agency decision received by her attorney on October 2,

1998, 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. <1> In her complaint, complainant alleged that she

was subjected to discrimination on the bases of race (African-Caribbean),

color (black), sex (female), national origin (Jamaican), and in reprisal

for prior EEO activity when:

Complainant was subjected to harassment from May 6, 1996 to the present;

On May 15, 1996, complainant was subjected to a hostile work environment

and intimidation; and

On May 15, 1996, complainant was subjected to sexual harassment when,

as she was leaving a meeting about her performance appraisal, her

supervisor called her a "bitch."

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)) on the grounds that

her complaint states the same claim that is pending before or has been

decided by the agency or Commission. The agency notes that on September

3, 1996, complainant's previous complaint was accepted for processing,

which included the issue of whether complainant was harassed at several

meetings discussing her proficiency report. Thus, the agency claims

that both the previous complainant and the present one involve alleged

harassment beginning in May 1996.

In the present case, we find that complainant alleges that she

was discriminated against when she was subjected to harassment and

intimidation from May 1996 to the present. The record indicates that

complainant previously filed an EEO complaint (Agency No. 97-0050)

concerning a hostile work environment beginning in May 1996. We find that

the present complaint states the same claim as raised in complainant's

previous complaint. Because we have decided to dismiss complainant's

complaint on the grounds that it states the same claim as previously

decided by the agency, it is unnecessary to discuss the agency's alternate

grounds for dismissal.

Accordingly, we find that the agency's dismissal of complainant's

complaint was proper and is AFFIRMED.

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:

April 18, 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.