01997034
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
01997034
July 21, 2000
.
Vicki M. Solomon,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997034
Agency No. 99-3664
DECISION
Vicki M. Solomon (complainant) filed a timely appeal with this Commission
from final agency decision (FAD) dated September 3, 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> In her complaint, complainant alleged that she was
subjected to discrimination and harassment on the bases of sex (female),
age (52 at relevant time), disability (depression, high blood pressure),
and reprisal (prior EEO activity) when the agency failed to investigate
EEO case number 96-1205 within the 180 day time requirement and did not
give her the opportunity to participate in the investigation.
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 it was a �spin off� complaint and therefore
failed to state a claim. The agency noted that the complaint would
be referred to agency official with oversight responsibility over the
complaint process for review and appropriate action.
We find that the agency properly dismissed the complaint. 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)(8)), requires that a complaint
that alleges dissatisfaction with the processing of a previously
filed complaint be dismissed. Here, the agency correctly forwarded
complainant's concerns to the agency official responsible for complaint
processing. See Equal Employment Opportunity Management Directive 110
(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 (EEO Case No. 96-1205). 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.
Accordingly, the agency's dismissal of the 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.