01995753
11-05-1999
Marilyn E. Lynch, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Marilyn E. Lynch v. Department of Veterans Affairs
01995753
November 5, 1999
Marilyn E. Lynch, )
Appellant, )
)
v. )
) Appeal No. 01995753
Togo D. West, Jr., ) Agency No. 99-2835
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On July 12, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated July 2, 1999, dismissing
one allegation from her complaint for failure to state a claim.
The Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
Appellant contacted the EEO office regarding allegations of discrimination
based on race, sex, age, disability, and reprisal. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, on October
22, 1998, appellant filed a formal complaint.
The agency defined the allegations as follows:
1. On or about September 16, 1998, appellant became aware that her
requests for Leave Without Pay (LWOP) dated May 26, 1998, July 6, 1998,
and August 3, 1998 were denied because she failed to cooperate for a
Fitness for Duty examination, which appellant perceived as being an
admonishment and a reprimand; and,
On or about September 17, 1998, appellant became aware that a male
co-worker was given LWOP without having to provide detailed medical
documentation, which appellant perceived as sexual harassment.
The agency issued a FAD dismissing allegation 2 for failure to state
a claim, pursuant to 29 C.F.R. �1614.107(a). Specifically, the FAD
indicated that appellant failed to allege a personal loss or harm
regarding a term, condition or privilege of her employment when she
learned that a male co-worker's request for LWOP was approved.
As a preliminary matter, the Commission notes that while the agency
dismissed allegation 2 for failure to state a claim, the more appropriate
analysis in this case is whether allegation 2 states the same matter
that is pending or has been decided by the agency or Commission. See 29
C.F.R. �1614.107(a).
Based on a review of the record, we find that allegation 2 is merely
an elaboration of allegation 1 and is properly dismissed as a separate
allegation. In allegation 1 appellant alleged that her requests for
LWOP were denied because she failed to cooperate for a Fitness Duty
examination. In allegation 2, appellant alleged that a male co-worker was
provided LWOP without having to provide medical documentation. Clearly,
appellant is challenging the agency's denial of her LWOP requests.
An investigation of allegation 1 would encompass the issue in allegation
2, as they both address the denial of appellant's leave requests.
Accordingly, we AFFIRM the agency's dismissal of allegation 2.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
11/05/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations