01990080
01-18-2000
Louama K. Driscoll, Complainant, v. Togo D. West., Jr., Secretary, Department of Veterans Affairs, Agency.
Louama K. Driscoll v.Department of Veterans Affairs
01990080
January 18, 2000
.
Louama K. Driscoll,
Complainant,
v.
Togo D. West., Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01990080
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning 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 final decision was issued on July 27,
1998. The appeal was postmarked September 28, 1998. The Commission finds
the appeal timely<1> (see 29 2 C.F.R. � 1614.402(a)),<2> and accepts it
in accordance with EEOC Order No. 960, as amended.
On June 14, 1998, complainant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the basis
of reprisal (prior EEO activity). Complainant alleged that the agency
discriminated against her when it proposed to abolish the Geriatrics &
Community Service Line in which she was employed as a Clinical Manager and
did not include her position on the proposed organizational chart. On July
27, 1998, the agency issued a final decision, dismissing complainant's
complaint pursuant to Commission regulation, contending that the complaint
alleged that a proposed personnel action was discriminatory. See
64 Fed. Reg. 37, 644, 37,657 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(5)). In support of her appeal,
the complainant notes that the agency abolished her position, effective
January 17, 1999, and she contends that the actual abolishment, as well
as other actions that agency management have taken, "demonstrates a
continued pattern of reprisal/harassment...."
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that an agency shall
dismiss a complaint that alleges "that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory." The Commission has held that proposed actions do not
create a direct and personal deprivation that would make the complainant
an "aggrieved" employee within the meaning of EEOC Regulations. Charles
v. Department of the Treasury, EEOC Request No. 05910190 (Feb. 25,
1991); Lewis v. Department of the Interior, EEOC Request No. 05900095
(Feb. 6, 1990). The Commission has further held, however, that where
the proposed action actually occurs, the agency should view the proposed
action as having merged with the actual action. See Charles. This rule
applies even where the actual action occurs after the agency dismisses
a complaint in which the complainant alleges discrimination based on
the proposed action only. Id.<3>
The record in this case indicates that the agency abolished complainant's
position after it dismissed her complaint and while the matter has
been pending on appeal. Accordingly, the agency's decision to dismiss
complainant's complaint on the grounds that she alleged that a proposed
action was discriminatory is REVERSED and this case is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to the
complainant that it has received the remanded claims 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 an
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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999)(to be codified
and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil action,
you have the right to file such action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that
you receive this decision. 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 filed your appeal with the
Commission. 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. 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
January 18, 2000
__________________
Date
1The dismissal of a complaint may be appealed to the Commission
within thirty (30) calendar days of the date of the complainant's
receipt of the dismissal, agency final action, or decision. See 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. �1614.402(a)). Because the agency failed on appeal to
supply a copy of the certified mail receipt or any other material capable
of establishing that date, the Commission presumes that the appeal was
filed within thirty (30) calendar days of the date of complainant's
receipt of the final decision.
2On 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.
3In Charles, the appellant's June 12, 1990 complaint alleged that the
agency discriminated against him when it proposed his transfer from his
Assistant Special Agent in Charge, Los Angeles, position to a position
in San Diego. On July 25, 1990, the agency dismissed his complaint as
alleging a preliminary action. On August 3, 1990, the agency transferred
him. Although the agency issued its final decision before effecting
the appellant's transfer, the Commission held that "[w]hen the agency
issued the transfer directive, the agency should have considered that
action to have merged with the proposed transfer allegation for which
the appellant had received EEO counseling."