Linda Menifee, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 1, 2000
01a02745 (E.E.O.C. Aug. 1, 2000)

01a02745

08-01-2000

Linda Menifee, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Linda Menifee v. Department of Veterans Affairs

01A02745

August 1, 2000

.

Linda Menifee,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A02745

Agency No. 99-2776

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated September 24, 1999, dismissing her complaint of unlawful

employment discrimination.<1> In her complaint, complainant alleged that

she was subjected to discrimination when:

From January, 1999, and on complainant was subjected to harassment; and

From January, 1999, and on management interfered with complainant's time

and attendance.

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)), for failure

to state a claim. Specifically, the agency claimed that complainant

failed to identify a basis of discrimination. In addition, 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)(7)), for failure to cooperate.

The agency stated that on July 29, 1999, it sent complainant a request

to identify the basis of her complaint and informed her that failure to

respond within 15 calendar days of her receipt of the request could result

in dismissal of her complaint. The agency stated that complainant failed

to respond and therefore claimed that her complaint should be dismissed

for failure to cooperate.

EEOC Regulation 29 C.F.R. � 1614.103(a) provides that individual and class

complaints of employment discrimination and retaliation prohibited by

Title VII (discrimination on the bases of race, color, religion, sex and

national origin), the ADEA (discrimination on the basis of age when the

aggrieved individual is at least forty years of age), the Rehabilitation

Act (discrimination on the basis of disability), or the Equal Pay Act

(sex-based wage discrimination) shall be processed under EEO Regulations.

EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be

subject to retaliation for opposing any practice made unlawful by Title

VII of the Civil Rights Act (Title VII) (42 U.S.C. � 2000e et seq.),

the Equal Pay Act (29 U.S.C. � 206(d)) or the Rehabilitation Act (29

U.S.C. � 791 et seq.) or for participating in any stage of administrative

or judicial proceedings under these statutes.

EEOC Regulations require the dismissal of complaints that fail to state

a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(1)). An agency shall accept

a complaint from any aggrieved employee or applicant for employment who

believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition. 29 C.F.R. �� 1614.103, . 106(a). The Commission's federal

sector case precedent has long defined an "aggrieved employee" as one

who suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 22, 1994).

The Commission's authority to address complaints only extends to those

brought under the statutes listed above. We note that complainant had

numerous attempts to identify a basis of discrimination - in counseling,

in her formal complaint, and in response to the request for information -

but failed to do so. Thus, we find that her complaint should be dismissed

for failure to state a claim.

Accordingly, the agency's decision dismissing complainant's complaint

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:

August 1, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 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.