Melissa Scott, Appellant,v.Togo D. West, Jr., Secretary, Department of Veteran Affairs, Agency.

Equal Employment Opportunity CommissionSep 24, 1999
01986071 (E.E.O.C. Sep. 24, 1999)

01986071

09-24-1999

Melissa Scott, Appellant, v. Togo D. West, Jr., Secretary, Department of Veteran Affairs, Agency.


Melissa Scott v. Department of Veteran Affairs

01986071

September 24, 1999

Melissa Scott, )

Appellant, )

) Appeal No. 01986071

v. )

) Agency No. 97-2234

Togo D. West, Jr., )

Secretary, )

Department of Veteran Affairs, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision 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 �501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. The appeal is accepted in accordance

with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for raising matters not brought to the attention of an EEO

counselor and stating a claim already pending or decided by the agency.

BACKGROUND

Appellant filed a formal complaint on September 2, 1997, alleging

discrimination on the bases of disability (schizophrenia) and reprisal

(prior EEO activity) when she was subjected to harassment, a hostile

work environment, retaliation, termination, and disparate treatment with

respect to assignment of duties and training.

In its final agency decision, the agency dismissed the complaint upon

concluding that appellant failed to contact an EEO counselor as mandated

by 29 C.F.R. �1614.105(a). Additionally, appellant's allegation of

discriminatory termination was dismissed pursuant to �1614.107(a) when

the agency found that it was the subject of a complaint that was pending

before or already decided by the agency. This appeal followed.

ANALYSIS AND FINDINGS

Raising a Matter Not Brought to the Attention of an EEO Counselor

EEOC Regulation 29 C.F.R. �1614.107(b) provides, in relevant part, that

an agency shall dismiss a complaint, or a portion thereof, that raises a

matter that has not been brought to the attention of a Counselor and is

not like or related to a matter that has been brought to the attention

of a Counselor.

After a careful examination of the file, the evidence reveals that

appellant, as the agency found, failed to initiate contact with an EEO

counselor before filing a formal complaint. Appellant, in her statement

on appeal, argues that she did not contact an EEO counselor because

she had been terminated, and thus, did not have access to a counselor.

In light of the fact that appellant filed a formal complaint with the

agency after she had been terminated, we find this argument to be not

credible. We do not understand how appellant could have believed that,

after her termination, she had access to the formal complaint part of the

agency's discrimination process but not the EEO counselor portion of it.

Therefore, we find that the agency's dismissal of the complaint on 29

C.F.R. �1614.107(b) grounds was proper.

Stating a Claim Already Pending or Decided by the Agency

EEOC Regulation 29 C.F.R. �1614.107(a) states, in pertinent part, that

an agency shall dismiss, in whole or in part, a complaint which states

the same claim that is pending before or has been decided by the agency

or the Commission.

The evidence in the file also reveals that, on June 28, 1997, appellant

filed a complaint alleging that she had been terminated on the basis

of her disability. In the second complaint, the one at issue here,

appellant also lists termination as one of the alleged discriminatory

events. The agency dismissed this allegation because it was the subject

of a previous complaint already pending before or decided by the agency.

In light of the evidence provided, the Commission agrees with the agency's

findings. The documents in the file indicate clearly that appellant was

already undergoing the EEO process with respect to the termination issue.

As such, we find that the decision to dismiss this allegation pursuant

to29 C.F.R. �1614.107(a) was appropriate. Based on the foregoing, we find

that the decision of the agency was proper and is, therefore, AFFIRMED.

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:

Sept. 24, 1999

____________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations