01a00937
04-24-2000
Rita J. Bryan, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Rita J. Bryan, )
Complainant, )
)
v. ) Appeal No. 01A00937
) Agency No. 99-3480
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 8, 1999, the agency issued a final decision dismissing
complainant's formal complaint of employment discrimination. On November
6, 1999, complainant filed a timely appeal with this Commission.<1>
In her formal complaint, dated July 12, 1999, complainant claimed to
suffer in reprisal for her prior EEO activity when:
On June 4, 1999, the agency proposed to remove complainant from
employment;
Complainant was harassed on May 9, 1998, August 27, 1998, and October
19, 1998;
On October 30, 1998, the agency proposed to suspend complainant;
Management required complainant to �float� to different clinics, which
did not accommodate her physical restrictions; and
Complainant was charged with Away-Without-Leave (AWOL).
In its final decision, the agency dismissed claim (1) for alleging harm
from a proposed action. Claims (2) - (5) were dismissed for stating the
same claim raised in Agency No. 98-1474.
The record includes a copy of the Investigative Report for Agency
No. 98-1474. Among the issues investigated was harassment occurring on
May 9, 1998, August 27, 1998, and October 19, 1998; a proposed suspension
dated October 30, 1998; and charges of AWOL on various dates.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides
that the agency shall dismiss a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
Claims (2) - (5) were raised in Agency No. 98-1474, and were the subject
of an investigation. Accordingly, the agency's dismissal of claims (2) -
(5) was proper.
Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(5) provides that the agency shall
dismiss a complaint that alleges that a proposal to take a personnel
action is discriminatory. In claim (1), complainant alleged that she
was discriminatorily issued a proposed notice of removal. Clearly, this
is a proposed action. While the Commission has made an exception when
an individual alleges that the proposed action was part of a pattern of
harassment, in the present case, since we are affirming the dismissal
of claims (2)-(5), there is not a pattern of harassment raised and,
therefore, the dismissal of claim (1) was proper.
The agency's dismissal of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.