01992793
07-19-2000
Marilyn Ball, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Marilyn Ball v. Department of Veterans Affairs
01992793
July 19, 2000
Marilyn Ball, )
Complainant, )
) Appeal No. 01992793
v. )
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On February 12, 1999, Marilyn Ball (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) with regard to her complaint of discrimination
in violation of Title VII of the Civil Rights Act of 1964, 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 final agency
decision was dated January 25, 1999. Accordingly, the appeal is timely,
and is accepted by this Commission in accordance with 64 Fed.Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
Complainant contacted an EEO Counselor, and subsequently filed a formal
complaint in January 1998, alleging that she had been subjected to sex
(female), age (50), and reprisal discrimination. With regard to the
matter at issue, complainant noted only that the complaint was �to be
picked up as required by [an] EEO Judge.� In its final decision, the
agency dismissed complainant's complaint for failure to state a claim.
The agency noted that complainant appeared to be requesting reinstatement
of a previous complaint following the Merit Systems Protection Board's
(MSPB's) dismissal of the matter. The agency further stated that
the issues raised in the prior complaint were pending before an EEOC
Administrative Judge (AJ). The agency concluded that, to the extent
complainant was raising issues regarding the processing of her prior
complaint, such matters constituted �spin-off� allegations which did
not state a claim within the meaning of the EEOC Regulations. It is
from this decision that complainant now appeals.
While the agency asserted that the matter at issue in the underlying
complaint failed to state a claim, we find the complaint would more
properly have been dismissed as stating the same claim as that raised
previously by complainant. The EEOC Regulations provide for the
dismissal of a complaint which states the same claim that is pending
before, or has previously been decided by the agency or the Commission.
64 Fed.Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(1)). A review of the record herein reveals
that, following the MSPB's dismissal for lack of jurisdiction, the agency
forwarded complainant's prior complaint to an EEOC AJ for a hearing in
March 1998. The record contains an acknowledgment letter dated October
26, 1998, from the appropriate EEOC District Office. Complainant herself
stated, on appeal, that her prior complaint was pending before an AJ.
Therefore, we find that, to the extent complainant was attempting to raise
the issues in her prior complaint, the matter was properly dismissed as
stating the same claim which is pending before or previously decided by
the Commission.
Furthermore, the EEOC Regulations specifically provide for the dismissal
of a complaint that alleges dissatisfaction with the processing of a
previously filed complaint. 64 Fed.Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(8)).
It is noted that the agency represented that the issue concerning
the timeliness of the referral to the AJ has been forwarded to the
appropriate official for consideration. Thus, any allegations concerning
the processing of the prior complaint were also properly dismissed.
Accordingly, it is the decision of the Commission to AFFIRM the final
agency decision.
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:
_07-19-00________ __________________________________
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 claimant, claimant's representative
(if applicable), and the agency on:
_________________________ __________________________
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.