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

Equal Employment Opportunity CommissionJul 21, 2000
01996581 (E.E.O.C. Jul. 21, 2000)

01996581

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

01996581

July 21, 2000

.

Vicki M. Solomon,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01996581

Agency No. 993559

DECISION

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

from a final agency decision (FAD) dated August 4, 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., the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501

of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 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 (not recorded<2>) and

reprisal (prior EEO activity) when the agency failed to respond to an

Acknowledgment Order from the Merit Systems Protection Board (MSPB),

dated April 13, 1999 (involving case SF-1221-99-0339-W-1).

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)(4)), noting that it is the subject of an appeal to the MSPB.

The agency also cited 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

the complaint failed to state a claim because it did not allege a personal

loss or harm with regard to a term or condition of employment.

On appeal, complainant contends that she has been subjected to a

continuing violation of Title VII and the Rehabilitation Act due to the

agency's continued refusal to respond to the orders of the MSPB.

The agency asks that its FAD be affirmed.

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 the complaint

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 the complaint for failure to state a claim

was proper.

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.

2 On appeal, complainant notes that one of the basis of her complaint

is �handicap (physical and emotional).�