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