01997074
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
01997074
July 21, 2000
.
Vicki M. Solomon,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997074
Agency No. 992250
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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> Complainant
alleged that she was subjected to harassment on the bases of sex (female),
disability (high blood pressure), and reprisal (prior EEO activity) when:
(1) the agency failed to respond to an Acknowledgment Order from
the Merit Systems Protection Board (MSPB), dated February 8, 1999,
(in regard to MSPB Docket No. SF-1221-99-0229-W-1); and
the Regional EEO officer attempted to combine this complaint with
another of complainant's pending complaints;
Complainant also checked off �retirement� and �termination/removal� on the
formal complaint form, although she did not discuss these allegations with
the EEO Counselor during the counseling session in which she discussed
claims 1 and 2.
BACKGROUND
The agency dismissed the complaint pursuant to 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 neither allegation constituted a personal
loss or harm with regard to a term or condition of employment. The agency
also noted that claim no. 2 was a �spin-off� complaint and, as such,
would be referred to the Deputy Assistant Secretary for the Office of
Resolution Management in accordance with Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110) at 5-14 (as
revised, November 9, 1999). Furthermore, the agency noted that the formal
complaint form also included the issues of retirement and termination,
two issues not discussed with the EEO Counselor. The agency dismissed
these allegations pursuant to 29 C.F.R. � 1614.107(a)(2). Finally,
the agency also dismissed the removal claim pursuant to 29 C.F.R. �
1614.107(a)(4), noting that complainant filed an appeal with the MSPB
concerning her removal prior to the filing of this EEO complaint.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency's continued failure to
timely respond to the Acknowledgment Order of the MSPB AJ constitutes
a continuing violation of Title VII and the Rehabilitation Act, causing
great harm to complainant in the form of harassment.
In response, the agency asks that its FAD be affirmed.
FINDINGS AND ANALYSIS
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, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, 106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
After a careful review of the record, we find that claim no.1 attacks the
agency's failure to comply with an MSPB order and therefore constitutes
a collateral attack on an MSPB proceeding. The Commission has held that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal
Service, EEOC Request No. 05940585 (September 22, 1994). The proper
forum for complainant to have raised her challenge to actions which
occurred during the MSPB process was at that proceeding itself. It is
inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the MSPB process. Therefore, the
agency's dismissal of claim 1 for failure to state a claim was proper.
Complainant's claim that the Regional EEO Officer discriminated against
her when he attempted to consolidate her complaint with another complaint
currently pending investigation before the agency was properly dismissed
as a spin-off allegation, pursuant to 29 C.F.R. � 1614.107(a)(8). The
agency correctly forwarded this concern to the agency official responsible
for the complaint process. See EE0-MD-110, at 5-14. Moreover, pursuant 64
Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.606), the agency is required to consolidate for
processing two or more complaints of discrimination filed by the same
complainant, after appropriate notification to complainant.
Furthermore, the issues raised by complainant in her formal complaint
involving her termination and retirement were also properly dismissed.
Not only were these allegations not discussed with the EEO Counselor
in the counseling sessions resulting in the right to file a formal
complaint notice for the subject complaint, but both the termination and
retirement issues were the subject of a previous Commission decision.
See Solomon v. Department of Veterans Affairs, EEOC Appeal No. 01991281
(October 8, 1999). These issues are therefore subject to dismissal
under 29 C.F.R. 1614.107(a)(1), which requires dismissal of complaints
that state the same claim that has been decided by the Commission.
Accordingly, after a thorough review of the record, including
complainant's arguments on appeal, we find that the agency properly
dismissed the complaint and therefore AFFIRM the FAD.
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.