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