Marcelia M. Boldin, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 24, 2000
01991242 (E.E.O.C. May. 24, 2000)

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.