01994791
02-16-2001
Veola Butler, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Veola Butler v. Department of Veterans Affairs
01994791
February 16, 2001
.
Veola Butler,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994791
Agency No. 200H-0306-99-1022
DECISION
Complainant filed a timely appeal with this Commission from an agency's
April 30, 1999 decision to dismiss her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In its dismissal, the agency defined the complaint as
alleging discrimination on the bases of race (African-American), sex
(female), and age when:
On January 29, 1999, complainant's Technical and Team Coaches informed her
that her work had not improved over the course of the year, and suggested
that complainant concentrate on working two specific types of Ratings;
On February 11, 1999, complainant was excluded from a training session
on certifying cases to the Board of Veterans Appeals; and
On February 18, 1999, complainant's Technical Coach refused to review
a case complainant worked.
The agency dismissed the entire complaint for failure to state a claim.
Specifically, the agency found that complainant suffered no adverse
employment action from any criticism of her job performance. Concerning
assignment of duties, the agency explained that if complainant's work
improved, she would be allowed to work other types of ratings. Therefore,
the agency found that complainant suffered no harm in the assignment of
her duties.
The agency also found that complainant suffered no harm from being
excluded from the training program, because the program was reserved for
Ratings Specialists �with one signature.� The remaining Specialists, such
as complainant, would be scheduled for the same training at a later date.
Since complainant was not entitled to attend the training, and would be
scheduled for a later training date, the agency found that she suffered no
cognizable harm by being excluded from training. The agency also found
no harm from the Coach's refusal to review her case because it concerned
a different type of Review than those she had already been told to do.
A review of the record reveals that when complainant met with her
Technical and Team Coaches, she was issued a written progress report.
This report informed complainant that �despite your best efforts,
there remains many areas of ratings that require more improvements on
your part.� It directed complainant to only perform certain types of
ratings, cautioned her to be more careful, and suggested she rely on
more knowledgeable employees. The Coaches also compiled a list of every
error complainant made.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege present harm inflicted on the basis of race, sex, religion,
national origin, age, disability, or prior protected activity. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
Complainant clearly suffered harm to a term, condition, or privilege of
employment when she received the report and error list. Such derogatory
information included in her personnel files would render complainant
aggrieved. Further, the agency's decision to assign her certain types
of Ratings also affected a term, condition or privilege of employment.
The agency's justification for not allowing complainant to take the
training class is irrelevant to the procedural issue of whether she
states a claim. See Osborne v. Department of the Treasury, EEOC Request
No. 05960611 (July 19, 1996). The denial of training affects a term,
condition, or privilege of employment, and was alleged on protected bases.
Therefore, she has stated a cognizable claim. The reasons complainant
was denied training should be addressed in an investigation of the
claim's merit.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED and the claims are
REMANDED for further investigation.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 16, 2001
__________________
Date