01991242
05-24-2000
Marcelia M. Boldin, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Marcelia M. Boldin v. Department of Veterans Affairs
01991242
May 24, 2000
Marcelia M. Boldin, )
Complainant, )
) Appeal No. 01991242
v. ) Agency No. 970238
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Marcelia M. Boldin (complainant) timely initiated an appeal from a final
agency decision (FAD) 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. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The
appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified at 29 C.F.R. � 1614.405). Complainant alleged that she was
discriminated against on the bases of disability (thrombocytosis) and
reprisal (prior EEO activity, prior requests for reasonable accommodation)
when she was reassigned to a teaching position (Nurse Instructor) in
December 1995, which led to her assignment to an unsafe location where
she was sexually assaulted on June 26, 1996.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Nurse Instructor<2> at the agency's Pittsburgh, Pennsylvania Medical
Center. Believing she was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on October 2,
1996. In her complaint, complainant alleges that she was subjected to a
"continuing series of harassing, humiliating and insulting events" since
October 1994, but essentially argues that her December 1995 reassignment
was caused by the agency's failure to accommodate her disability and led
to the June 1996 sexual assault. The Counselor's Report establishes that
when complainant sought counseling in July 1996, she indicated that her
complaint was based on her belief that the June 1996 sexual assault was
caused by her reassignment to the Nurse Instructor position which was
caused by the agency's failure to properly accommodate her disability.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that the reassignment to a teaching
position in December 1995, was a single occurrence and therefore did not
state a claim of harassment. The agency also noted that while complainant
established a prima facie case of reprisal, the agency articulated a
legitimate nondiscriminatory reason. Specifically, the agency noted
that complainant was reassigned to the teaching position in an attempt to
accommodate her physical limitations by assigning her to a less stressful
position. The agency concluded that complainant offered no evidence to
indicate that this explanation was a pretext for unlawful discrimination.
The agency also noted that complainant's allegation that the agency
failed to accommodate her disability when it reassigned her to the
teaching position in December 1995 was pending before the Commission,
under Agency Case No. 96-1438. The agency concluded that the claim should
therefore be dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)).
CONTENTIONS ON APPEAL
On appeal, complainant contends that because the agency did not
acknowledge that she was disabled until October 20, 1997 (in the FAD
for Agency Case No. 96-1438), her allegation of failure to accommodate
should not be dismissed as pending before the Commission. Complainant
argues that because the agency previously took the position that she was
not disabled when discussing her reassignment, it is clear that when
the reassignment occurred in December 1995, agency officials assumed
complainant was not entitled to an accommodation.
In response, the agency reiterates that the failure to
accommodation/reassignment issue was raised in Agency Case No. 96-1438.
The agency argues that complainant is attempting to recast the
reassignment issue by relating it to the June 1996 assault. The agency
also reiterates that it took sufficient steps to accommodate complainant
when she worked at her previous job as an Infection Control Practitioner.
Specifically, the agency notes that it first attempted to accommodate
her within that position by giving her time off, clerical support and
energy assistance devices, and then by reassigning her to a less stressful
teaching position more suited to her talents. The agency also argues that
complainant was reassigned not in retaliation or due to her disability,
but because her abilities to disseminate information through education
were better than her abilities to collect data or complete reports.
ANALYSIS AND FINDINGS
After a thorough review of the record, we find that complainant's claim
can best be stated as follows: due to prior requests for reasonable
accommodation and prior EEO activity, the agency reassigned complainant
to a Nursing Instructor position in December 1995, which required her
to work in unsafe working conditions, leading to an assault on June
26, 1996. We agree with the agency that this is an attempt to reframe
complainant's earlier complaint concerning the December 1995 reassignment.
The Commission's regulations provide for the dismissal of a complaint,
or portion of a complaint, that states the same claim that is pending
or has been decided by the agency or the Commission. See 29 C.F.R. �
1614.107(a). See also Terhune v. United States Postal Service, EEOC
Request No. 05950907 (July 18, 1997). In order to determine whether
a formal complaint presents "identical matters" as a prior complaint,
three elements of the complaint are reviewed: (1) the date of the most
recent event; (2) the prohibited bases alleged; and (3) the facts which
resulted in the alleged discrimination. See Jordan v. Department of the
Treasury, EEOC Appeal No. 01964461 (June 10, 1997). Additionally, the
complainant must be the same in each case. See Nelson v. United States
Postal Service, EEOC Appeal No. 01904019 (November 2, 1990).
A review of Commission records reveals that Agency Case No. 96-1438 was
appealed to the Commission on November 17, 1997. Boldin v. Department
of Veterans Affairs, EEOC Appeal No. 01981146 (June 9, 1999). This case
involved several claims of disability and reprisal discrimination, one
of which was the December 1995 reassignment to the Nursing Instructor
position. A review of complainant's appeal statement in this prior case
makes clear that the issue of whether the reassignment was a reasonable
accommodation was raised. Complainant writes, "on the accommodation
issue, the Agency decided, contrary to Complainant's evidence... that
the Nursing Instructor was appropriate." The prior decision affirmed
the agency's finding of no discrimination. Currently, a request to
review this decision is pending before the Commission. See Boldin
v. Department of Veterans Affairs, EEOC Request No. 05990865. It is
clear that the matter raised and addressed in Appeal No. 01981146 and
currently pending review by the Commission, is identical to that raised in
the subject appeal�the reassignment at issue occurred in December 1995 and
complainant alleged in both appeals that the reassignment was an improper
accommodation of her disability, in part motivated by retaliation.
Although the current appeal includes an additional fact-- namely, that
after being reassigned to the Nurse Instructor position, complainant was
assaulted�this does not alter the fact that complainant's claim in both
cases is that the agency failed to reasonably accommodate her disability,
due in part to retaliation, when it reassigned her in December 1995.
Accordingly, after a thorough review of the record, including
complainant's arguments on appeal, the agency responses, and the record
for Appeal No. 01981146, we find that the agency's decision to dismiss
the subject complaint as pending before the Commission was appropriate.
The FAD is therefore 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:
May 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 Prior to her assignment to this teaching position in December 1995,
complainant was an Infection Control Practitioner at the same facility.