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.