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

Equal Employment Opportunity CommissionOct 8, 1999
01991281 (E.E.O.C. Oct. 8, 1999)

01991281

10-08-1999

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


Vicki Solomon v. Department of Veterans Affairs

01991281

October 8, 1999

Vicki Solomon, )

Appellant, )

) Appeal No. 01991281

v. ) Agency No. 98-1025

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. The appeal is accepted in accordance

with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for raising a matter appealed to the Merit Systems Protection

Board (MSPB), for failure to state a claim, and for untimely EEO Contact.

BACKGROUND

Appellant filed a formal complaint on March 12, 1998, alleging

discrimination on the basis of reprisal for prior EEO activity when she

was wrongfully terminated by the agency and, on or about January 14,

1998, she was harassed when she received a retirement package from

Human Resources. Appellant alleges that this incident was part of

ongoing harassment by the agency which she faced from September 1995

through February 1997.

In its FAD, the agency dismissed the complaint. The agency found that

appellant appealed her termination effective July 7, 1997, to the MSPB.

The Board issued an initial decision on her appeal on June 11, 1998

and informed her of the right to file for review with the Commission.

The agency found that the record contained no evidence that appellant

filed for review with the Commission. Therefore, the agency dismissed

the termination allegation pursuant to 29 C.F.R. �1614.107(d). The FAD

dismissed the harassment allegation pursuant to 29 C.F.R. �1614.107(a)

finding that appellant failed to indicate how she suffered a personal loss

or harm with regard to a term or condition of employment. This appeal

followed.

ANALYSIS AND FINDINGS

Termination Allegation

A mixed case complaint is a complaint of employment discrimination filed

with a federal agency, related to or stemming from an action that can be

appealed to the MSPB. 29 C.F.R. �1614.302(a)(1). An aggrieved person may

initially file a mixed case complaint with an agency or may file a mixed

case appeal directly with the MSPB, pursuant to 5 C.F.R. �1201.151, but

not both. 29 C.F.R. �1614.302(b). EEOC Regulation 29 C.F.R. �1614.107(d)

provides that an agency shall dismiss a complaint or a portion of a

complaint where the complainant has raised the matter in an appeal to

the MSPB.

Appellant filed an appeal to the MSPB regarding her termination by the

agency. On June 11, 1998, the MSPB issued appellant a decision which

affirmed the agency's action and found no discrimination by the agency.

Appellant was also notified of her rights to have the MSPB decision

reviewed by the Board or the Commission. Appellant filed a petition with

the Commission and the MSPB. The Commission closed appellant's petition

on August 20, 1998, stating that the MSPB informed us that appellant

appealed the MSPB initial decision dated June 11, 1998. The Board denied

appellant's petition for review of the initial decision on November

10, 1998. In its denial, the MSPB informed appellant of her right to

petition the Commission to review the Board's final decision on this

matter. The record shows that appellant failed to take such an action.

Also, appellant has stated her desire to bring this allegation to Federal

Court in this appeal of the agency's FAD. Therefore, the Commission finds

that appellant has raised the allegation of discriminatory termination

in her appeal to the MSPB and that the agency's FAD properly dismissed

appellant's allegation pursuant to 29 C.F.R. �1614.107(d).

Allegations of Harassment

Appellant alleges that she was harassed when the agency sent her

a retirement package without sending a duplicate copy to the MSPB

Administrative Judge. We find that this allegation constitutes a

collateral attack on the MSPB process. A collateral attack involves

a challenge to another forum's proceeding. Lau v. National Credit

Union Administration, EEOC Request No. 05950037 (March 18, 1996).

Appellant's complaint did not center on discrimination within the MSPB

process. Instead, as the record indicates, appellant merely alleged

dissatisfaction with the MSPB process. Such allegations constitute

a collateral attack and should be raised in that forum. Therefore,

the Commission finds that this allegation should be dismissed.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�1614.106(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).

In this allegation, appellant also asserts that she was harassed by

the agency providing nine incidents as examples of the harassment she

has alleged. In order to constitute a violation of Title VII, the

conduct must be "so objectively offensive as to alter the conditions of

the victim's employment." See Enforcement Guidance: Vicarious Employer

Liability for Unlawful Harassment by Supervisors, EEOC Notice No.915.002

(June 18, 1999) (citing Oncale v. Sundowner Offshore Services, Inc.,

118 S. Ct. 998, 1002 (1998)). Therefore, we find, viewing all nine

incidents cited in appellant's complaint as a whole, that the actions

described therein are not sufficient to state a claim of harassment.

Therefore, we find that appellant's claim of harassment is dismissed

for failure to state a claim, pursuant to 29 C.F.R. �1614.107(a).

CONCLUSION

Accordingly, the decision of the agency is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

Oct. 8, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations