01992330_r
10-21-1999
Randy Wright, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Randy Wright, )
Appellant, )
)
v. ) Appeal No. 01992330
) Agency No. 98-4144
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
Agency. )
)
DECISION
Upon review, we find that the agency properly dismissed the matters that
it defined as allegations 1-3 of appellant's complaint. These allegations
were dismissed pursuant to 29 C.F.R. �1614.107(b), on the grounds that
appellant did not raise these issues with the EEO Counselor prior to
filing his formal complaint. In his formal complaint, appellant alleged
that he was subjected to discrimination based on his race as follows:
Performance Appraisal/Proficiency Report: September 1, 1998;
Training: June 1998 - August 1998;
Team Player: June - September 1998; and
He was not selected for one of three positions announced as Housekeeping
Aid Supervisor, with the last non-selection occurring on November 3, 1998.
The EEO Counselor's Report indicates that the only allegation raised by
appellant during the informal EEO counseling process was his nonselection
for the position of Housekeeping Aid Supervisor. EEOC Regulation 29
C.F.R. �1614.107(b) states, in pertinent part, that an agency shall
dismiss a complaint or portion thereof which raises a matter that has
not been brought to the attention of an EEO Counselor, and is not like
or related to a matter on which the complainant has received counseling.
A later allegation or complaint is "like or related" to the original
complaint if the later allegation or complaint adds to or clarifies
the original complaint and could have reasonably been expected to grow
out of the original complaint during the investigation. See Scher
v. United States Postal Service, EEOC Request No. 05940702 (May 30,
1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990). Upon review, we find that the agency's dismissal of
allegations 1-3 was proper since appellant did not raise these issues
with the EEO Counselor, nor are they like or related to the non-selection
issue raised. Accordingly, the agency's decision dismissing allegations
1-3 of the instant complaint is hereby 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. 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 (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:
October 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations