05a00924
11-22-2000
Marcelia Boldin, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Marcelia Boldin v. Department of Veterans Affairs
05A00924
November 22, 2000
.
Marcelia Boldin,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A00924
Appeal No. 01991242
Agency No. 970238
DENIAL OF REQUEST FOR RECONSIDERATION
Marcelia Boldin (complainant) initiated a request to the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision
in Marcelia Boldin v. Department of Veterans Affairs, EEOC Appeal
No. 01991242 (May 24, 2000).<1> EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b).
The prior decision dismissed complainant's claim that she was subjected
to disability discrimination and retaliation when the agency failed to
properly accommodate her. This claim involved the agency's decision to
reassign complainant to a Nurse Instructor position in December 1995. The
dismissal was based on the fact that this claim was the same as one of
the claims raised by complainant in EEOC Appeal No. 01981146 (June 9,
1999), for which a request for reconsideration is currently pending
(Boldin v. Department of Veterans Affairs, EEOC Request No. 05990865).
Complainant argues that the prior decision involved a clearly erroneous
interpretation of material fact or law in that the subject complaint did
not raise the same claim as that addressed in EEOC Appeal No. 01981146.
After a careful review of the file, we find that the prior decision
was correct. Appeal No. 01981146 raised several claims, including the
claim that complainant was subjected to disability discrimination and
retaliation when she was required to perform nursing education duties
since December 1995. Similarly, the subject complaint involved the
claim that complainant was subjected to disability discrimination and
retaliation when she was assigned nursing education duties in December
1995 and therefore was not properly accommodated. While these claims
are worded differently and, as complainant alleges, were approached
differently during their separate investigations, they involve the same
agency action, the same bases, and the same surrounding facts. As noted
in the prior decision, such similarities lead to the conclusion that the
claims are the same. See Terhune v. United States Postal Service, EEOC
Request No. 05950907 (July 18, 1997). Although complainant argues that
she did not know that the earlier complaint encompassed the accommodation
issue, as it was not addressed by the agency investigator, complainant
did raise the issue on appeal of that complaint. Indeed, she argued
in her appeal statement that the agency incorrectly determined that her
assignment to nursing education duties was a proper accommodation.
Furthermore, we note that the doctrine of res judicata bars not only
the raising of identical claims in subsequent litigation, but also
bars claims that might have been raised in the prior action. See Malone
v. Department of the Treasury, EEOC Request No. 05940242 (September 9,
1994). Here, even assuming the issue of accommodation was not raised
in the earlier case, complainant had ample opportunity to raise it, as
the complaint in that case did include mention of the facts surrounding
the accommodation issue.
As the prior decision correctly concluded that EEOC Appeal No. 01981146
and EEOC Appeal No. 01991242 raised the same claim, it did not involve
a clearly erroneous interpretation of material fact or law.
While complainant may also have intended to argue that the prior decision
will have a substantial impact on the policies, practices, or operations
of the agency, she failed to satisfy this criterion. She argues that
allowing the agency to dismiss a complaint on procedural grounds after the
investigation has been completed is a waste of the investigator's work.
We note, however, that if a claim is procedurally defective, the fact
that an investigation was mistakenly conducted does not bar dismissal of
the claim. Commission regulations require an agency to dismiss complaints
prior to a request for a hearing if the complaint states the same claim
that is pending before or has been decided by the agency of Commission.
See 29 C.F.R. � 1614.107(a)(1). The agency properly followed this
regulation. Complainant also asserts that if the agency had originally
dismissed her complaint, instead of accepting it for investigation,
she could have considered other ways to pursue the accommodation issue.
However, complainant may still file a civil action on this matter,
as noted below.
Accordingly, the decision in EEOC Appeal No. 01991242 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
November 22, 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.