Paula C. Tilden, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 9, 1999
01991529 (E.E.O.C. Dec. 9, 1999)

01991529

12-09-1999

Paula C. Tilden, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Paula C. Tilden v. Department of Veterans Affairs

01991529

December 9, 1999

Paula C. Tilden, )

Complainant, )

)

v. ) Appeal No. 01991529

) Agency No. 98-0952

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

________________________________)

DECISION

On December 11, 1998, complainant filed a timely appeal of a November

25, 1998 final agency decision, which was received by her on December 3,

1998, dismissing her complaint for stating the same claim that had been

decided by the Commission.<1>

In its final decision, the agency identified the claim of complainant's

February 18, 1998 complaint as whether complainant was discriminated

against when on January 14, 1998, she was subjected to harassment and

reprisal when the agency did not comply with an EEOC Decision (EEOC Appeal

No. 01945381 (March 18, 1996) request for reconsideration denied, EEOC

Request No. 05960473 (November 20, 1997), when the agency reassigned

her to duties in the GS-1087 series rather than the GS-1084 series.

The agency determined that the present complaint stated the same claim

contained in complainant's previous complaint, Agency No. 93-2240, which

was previously decided by the Commission. In EEOC Appeal No. 01945381

(March 18, 1996), the Commission ordered the agency to retroactively

place complainant in the position of Visual Information Specialist, GS-7,

effective January 14, 1993, the date it reclassified her position, and

in the event that such a position was not available, to place complainant

in a similar GS-7 position in another department.

In response to complainant's appeal, the agency asserts that the

present complaint is identical to the issue currently pending before

the Commission pursuant to a Petition for Enforcement, in EEOC Petition

No. 04980021, filed by complainant in February 1998.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.107(a)(1)) provides that prior to a request

for a hearing in a case, the agency shall dismiss an entire complaint

that states the same claim that is pending before or has been decided

by the agency or Commission.

In the complaint, complainant alleged that the agency failed to comply

with the Commission's order in EEOC Appeal No. 01945381 (March 18, 1996)

when she was reassigned to the GS-1087 series. The record indicates that

on March 25, 1998, complainant properly petitioned the Commission for

enforcement of the decision in Appeal No. 01945381, alleging the same

matter raised in the present complaint. See 29 C.F.R. �1614.503(a).

The record also indicates that this petition for enforcement, EEOC

Docket No. 04980021, was decided by the Commission on April 16, 1999.

Accordingly, the agency's final decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

December 9, 1999

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 complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.