01a03774
08-03-2000
Lourdes B. Sherwood, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Lourdes B. Sherwood v. Department of Veterans Affairs
01A03774
August 3, 2000
.
Lourdes B. Sherwood,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03774
Agency No. 200P-2102
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 20, 2000, dismissing her complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> The Commission accepts the appeal in accordance
with 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. �
1614.405).
Complainant, an applicant for employment, contacted an EEO Counselor on
February 24, 2000, indicating that the agency had failed to hire her for
three positions in September 1999. When counseling was unsuccessful,
complainant filed a formal complaint on March 23, 2000, alleging that she
was discriminated against on the bases of race, age, and reprisal when:
On February 23, 2000, the agency denied her Privacy Act request;
On March 15, 2000, the agency required her to sign a settlement agreement
in order to obtain employment;
Denial of Freedom of Information Act (FOIA) request in September 1999
and December 1999; and,
From May 1999 to March 2000, subjected to �10 months of documented civil
rights violations, veterans preference, American Disabilities Act (ADA)
derived 100% disabled veteran (permanent and total).�
By letter of March 30, 2000, the agency requested detailed information
from complainant to clarify her claims, and to provide the reason for
her untimely EEO Counselor contact regarding her claim that the agency
failed to hire her for three positions in September 1999, assuming that
this was included in claim 4. Complainant responded by letter dated
April 2, 2000, indicating that she was now filing a new complaint,<2>
and requesting a copy of the Commission's regulations and an extension
of time to obtain legal counsel prior to responding to the request
for additional information. The letter also requested agency policy
and procedures regarding FOIA requests, as well as a statement from
an identified agency official explaining why complainant should be
required to �waive all my Constitutional and Civil Rights to obtain
VA employment,� and the name of the official who authorized faxing the
Settlement Agreement to complainant.
The agency responded in a letter dated April 4, 2000, providing an
explanation of the EEO process and a copy of the requested regulations.
The agency denied the request for a time extension noting it had no
authority to do so, but did give complainant an additional 15 days
to respond. It also rejected the �new� complaint noting that it was
the same as claim 2 in the instant complaint. The agency also advised
complainant that Privacy Act and FOIA complaints do not fall under the
purview the Commission's regulations, and provided the proper parties
to contact at the agency regarding these concerns.
By letter dated April 7, 2000, complainant responded to the agency's
request for information, submitting numerous documents. After reviewing
this material, the agency issued its decision dismissing the complaint in
its entirety. Regarding the Privacy Act and FOIA claims (claims 1 and 3),
the agency again noted that the Commission's regulations do not address
these matters, and dismissed claims 1 and 3 for failure to state a claim.
The agency also dismissed claim 2 for failure to state a claim finding
that complainant was not harmed in a term or condition of employment
by failing to sign the settlement agreement, further noting that the
settlement agreement provisions were not onerous. Regarding claim 4,
the agency dismissed it for failure to cooperate. The agency found
that notwithstanding complainant's response and submitted documentation,
complainant failed to provide specific information regarding this claim.
The agency also noted that complainant did not discuss claim 4 with the
EEO Counselor, and did not provide a reason why it was not discussed.
However, the agency then found that assuming that the �failure to
hire� claim discussed with the EEO Counselor was included in claim 4,
complainant failed to provide a reason to justify her late EEO contact.
Accordingly, the agency determined that this portion of the claim should
be dismissed for untimely EEO contact.
On appeal, complainant repeats her contentions, additionally indicating
that she was hired for a position she applied for in February 2000.
The agency request that we affirm its decision in this case.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. 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 21, 1994).
Regarding claim 1, we note that the Privacy Act, 5 U.S.C. � 552(g)(1),
provides an exclusive statutory framework governing the disclosure
of identifiable information contained in federal systems of records
and jurisdiction rests exclusively in the United States District
Courts for matters brought under the provisions of the Privacy Act.
Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290,
05890291 (April 12, 1989). Therefore, the agency's decision to reject
complainant's claim concerning a violation of the Privacy Act for failure
to state a claim was proper.
Regarding claim 3, the Commission has held that it does not have
jurisdiction over the processing of FOIA requests. Instead, persons
having a dispute regarding such requests should bring any appeals about
the processing of his or her FOIA requests under the appropriate FOIA
regulations. Gaines v. Department of the Navy, EEOC Request No. 05970386
(June 13, 1997). In the instant case, therefore, complainant's claim
that the agency improperly handled her FOIA request fails to state a
claim within the purview of the EEOC regulations at 29 C.F.R. � 1614,
and we find that the agency's dismissal was proper.
Regarding claim 2, we find that the agency's dismissal for failure
to state a claim was proper. Complainant failed to show how she was
aggrieved in a term or condition of employment within the meaning
of the above cited laws and regulations. We find that complainant
has misconstrued the purpose of the settlement agreement, averring
that it was, in essence, a �condition� to her employment. Instead,
it's purpose was to settle her many complaints against the agency in
return for providing her with a position she desired. We note that
complainant was subsequently hired for this position without having
signed the settlement agreement. Consequently, we affirm the agency's
dismissal for failure to state a claim.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(7)) provides for
the dismissal of a complaint where the agency has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant has failed to respond to
the request within 15 days of its receipt or the complainant's response
does not address the agency's request, provided that the request included
a notice of the proposed dismissal. The regulation further provides
that, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information for that purpose is available.
Regarding claim 4, the record indicates that complainant twice received
letters from the agency requesting information clarifying her claim
regarding 10 months of civil rights violations, etc., not further
described, but failed to respond with pertinent information. The first of
these letters notified complainant that her complaint could be dismissed
if she failed to respond within fifteen days, and the second letter
extended this same fifteen day period for an additional fifteen days.
In making its determination, the agency noted that this claim, as set
forth in the formal complaint, was not discussed with the EEO Counselor,
and that without more information, it was too vague to adjudicate.
Under these circumstances, we find that the agency's dismissal for
failure to cooperate was proper. Moreover, to the extent that it may
be included in claim 4, we also agree with the agency's determination
that complainant's �failure to hire� claim was untimely raised with an
EEO Counselor. The record clearly reflects that complainant did not
contact an EEO Counselor until February 24, 2000, more than 45 days after
receiving notification of the three non-selections in September 1999.
Furthermore, although requested to do so, complainant failed to provide
any reason to justify the untimely EEO Counselor contact. Accordingly,
we affirm the agency's dismissal pursuant to 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified as EEOC Regulation 29 C.F.R. � 1614.107(a)(2))
for untimely EEO contact.
In conclusion, for the reasons set forth herein, we AFFIRM the agency's
dismissal of the instant complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 3, 2000
__________________
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.
2The new complaint repeats claim 2 herein alleging that the agency
was requiring her to sign a settlement agreement in order to obtain
employment.