Vicki M. Solomon, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 21, 2000
01997033 (E.E.O.C. Jul. 21, 2000)

01997033

07-21-2000

Vicki M. Solomon, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Vicki M. Solomon v. Department of Veterans Affairs

01997033

July 21, 2000

.

Vicki M. Solomon,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01997033

Agency No. 99-3800

DECISION

Vicki M. Solomon (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated August 10, 1999 dismissing

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., Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1> Complainant alleged that she was subjected

to discrimination and harassment on the bases of sex (female), age

(51 at relevant time), disability (not recorded) and reprisal (prior

EEO activity) when the agency failed to notify and advise her of her

right to file an EEO complaint after the dismissal of her Merit Systems

Protection Board (MSPB) appeal.

The agency dismissed the complaint pursuant to EEOC Regulation 64

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

to as 29 C.F.R. � 1614.107(a)(1)), noting that it failed to state a

claim because it did not allege a personal loss or harm with regard to

a term or condition of employment. The agency noted that it would refer

the allegation to the agency official with oversight responsibility over

the complaint process for review and appropriate action.

On appeal, complainant contends that the agency's failure to notify

her in a timely fashion of her right to file an EEO complaint is part

of a pattern of discrimination and harassment. She notes that she was

harmed in that the MSPB appeal dealt with gaining the full benefit of her

medical retirement and the agency's action prevented that from occurring.

The agency requests that its FAD be affirmed.

EEOC Regulation 64 Fed. Reg. 37,644, 36,659 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.302(b)), states that if a

person files a mixed case appeal with the MSPB and the MSPB dismisses

that appeal for jurisdictional reasons, the agency shall promptly notify

the individual in writing of the right to contact an EEO counselor

within 45 days of receipt of the notice and to file an EEO complaint.

However, a failure on the agency's part to abide by this regulation

cannot be remedied by the filing of a separate EEO complaint. Such a

complaint is analogous to a �spin-off� complaint, as it essentially

alleges dissatisfaction with the processing of a separate complaint,

and is subject to dismissal under 64 Fed. Reg. 37,644, 37,656 (1999) (to

be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(8)).

The agency therefore correctly dismissed the complaint in the case at

hand.

The appropriate method for redressing the agency's alleged failure is

to bring it to the attention of the agency official responsible for

the complaint process. See Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO-MD-110) at 5-14 (as revised,

November 9, 1999). This official must add a record of complainant's

concerns and the agency's actions to resolve the concerns to the complaint

file maintained in the underlying complaint. See EEO-MD-110, at 5-26.

We advise complainant that if the agency fails to informally resolve her

concerns, she may present them to the EEOC either when the underlying

complaint is under the jurisdiction of an EEOC Administrative Judge,

or, if she does not request a hearing on the underlying complaint, to

the EEOC Office of Federal Operations on appeal. See id. We note that

it is not clear from the record whether complainant filed a complaint in

regard to those issues dismissed by the MSPB for jurisdictional reasons,

i.e., whether �an underlying complaint� exists. Assuming, however,

that complainant has not filed a complaint on these issues and that her

allegation concerning the agency's failure to notify her of her right to

do so is true, we advise the agency to notify complainant of her right

to contact an EEO Counselor and file an EEO complaint, as required by

29 C.F.R. � 1614.302(b).

Accordingly, the agency's dismissal of this complaint was proper and 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

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:

_______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

July 21, 2000

Date

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.