Marilyn Ball, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01992793 (E.E.O.C. Jul. 19, 2000)

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.