Marie Vaughn-Walker, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01995186 (E.E.O.C. Feb. 3, 2000)

01995186

02-03-2000

Marie Vaughn-Walker, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Marie Vaughn-Walker, )

Complainant, )

)

v. )

) Appeal No. 01995186

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On June 11, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) pertaining to 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.<1> The Commission

accepts the appeal in accordance with EEOC Order No. 960, as amended.

On June 9, 1998, complainant contacted the EEO office regarding claims

of discrimination based on reprisal. Informal efforts to resolve

complainant's concerns were unsuccessful. Accordingly, on September 8,

1998, complainant filed a formal complaint alleging harassment.

The agency framed the complaint as follows:

1) In September 1996, complainant was asked to present a current nursing

license; and,

2) Complainant received a copy of a letter to Senator Robb, dated May 26,

1998 and signed by her Chief, the Director of Nursing Services.<2>

The agency issued a FAD, dated May 13, 1999, dismissing claim 1 for

failure to cooperate. Specifically, the agency stated that although the

alleged event occurred in September 1996, complainant did not contact

a counselor until June 1998. The agency issued complainant a letter

requesting a reason for her delayed contact and notifying her that failure

to provide the requested information could result in the dismissal of

her complaint. According to the agency, complainant's response provided

no explanation. Claim 2 was dismissed for failure to state a claim. �

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(7)) requires an agency to dismiss

a complaint or a portion of a complaint for failure to cooperate, or

alternatively, to adjudicate the complaint if sufficient information

for that purpose is available. The regulation is in applicable under

the following circumstance: (1) the agency has provided the complainant

with a written request to provide relevant information or to otherwise

proceed with the complaint; (2) the request included a notice of the

proposed dismissal for failure to respond within 15 days of receipt of

the request; and (3) the complainant either fails to respond to the

request within 15 days of receipt or the complainant's response does

not address the agency's request. The Commission has held that the

regulation is applicable, however, only in cases where there is a clear

record of delay or contumacious conduct by the complainant. See Anderson

v. U.S. Postal Service, EEOC Request No. 05940850 (February 24, 1995).

In the instant case, we find that the agency reasonably requested a

reason for complainant's delayed counselor contact. While the agency

may have determined that complainant did not provide an explanation,

complainant nevertheless attempted to respond to the agency's request.

Further, we note that the agency did not specifically request information

regarding claim 1 (September 1996 incident). In her response to the

agency's request, complainant addressed the timeliness of claim 2.

The agency does not contend that complainant's response was untimely.

Moreover, the Commission finds that complainant's response is not

reflective of delay or contumacious conduct. Therefore, we find that the

agency improperly dismissed claim 1 for failure to cooperate. However,

we make no determination regarding whether complainant's June 9, 1998

contact, concerning an event that purportedly occurred in September 1996,

is timely. Accordingly, the agency's decision to dismiss claim 1 for

failure to cooperate is REVERSED and REMANDED to the agency for further

processing.

With regard to claim 2, we find that it was properly dismissed by the

agency for failure to state a claim. Volume 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 22, 1994).

Complainant contends that she was discriminated against when she received

a letter dated May 26, 1998, which allegedly stated that she did not have

a current license on file. Complainant has failed to indicate how the

alleged event resulted in a personal harm or loss with respect to a term,

condition or privilege of her employment. Further, the Commission has

repeatedly found that remarks or comments unaccompanied by a concrete

agency action are not a direct and personal deprivation sufficient to

render an individual aggrieved for the purposes of Title VII. See Backo

v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996); Henry v. United States Postal Service, EEOC Request No. 05940695

(February 9, 1995). Therefore, we find that the letter dated May 26,

1998 did not render complainant an �aggrieved� employee. Accordingly,

the agency's dismissal of claim 2 was proper and is AFFIRMED.

The agency's decision to dismiss claim 1 was improper, and is REVERSED.

Claim 1 is REMANDED to the agency for further processing in accordance

with this decision and the Order below. The agency's decision to dismiss

claim 2 was proper, and is AFFIRMED.

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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

February 3, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.

2We note that the agency did not number the claims, but we do so here

for purposes of clarification.