01975229
10-09-1998
Doris E. Stuart, Appellant, v. Togo D. West, Jr. Secretary, Department of Veterans Affairs, Agency.
Doris E. Stuart v. Department of Veterans Affairs
01975229
October 9, 1998
Doris E. Stuart, )
Appellant, )
)
v. ) Appeal No. 01975229
)
Togo D. West, Jr. )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
June 10, 1997 dismissing appellant's complaint.
The Commission finds that the agency's decision dismissing the reduction
in force allegation on the grounds that appellant elected to raise the
matter in an appeal to the Merit Systems Protection Board is proper
pursuant to 29 C.F.R. �1614.107(d).
The agency dismissed the issues of leave, performance appraisal,
and insurance benefits (other than workers' compensation claims) for
failure to cooperate. In the complaint appellant did not describe or
provide dates for the allegations of leave, performance appraisal, or
insurance benefits (other than workers' compensation claims). By letter
dated April 17, 1997 the agency requested that appellant clarify these
allegations by describing each allegation specifically and the date each
allegation occurred. Appellant responded by letter dated May 5, 1997.
The Commission finds that appellant failed to show she was aggrieved
in the issues of leave and insurance benefits (other than workers'
compensation claims). Therefore, we find that the issues of leave
and insurance benefits (other than workers' compensation claims) are
properly dismissed for failing to state a claim pursuant to �1614.107(a).
Because of our disposition we do not address whether the issues of
leave and insurance benefits (other than workers' compensation claims)
were properly dismissed for failure to cooperate.
In the letter dated May 5, 1997 appellant did not list the dates of the
performance appraisals at issue. Therefore, we find that appellant has
failed to show that she timely contacted an EEO Counselor regarding
the performance appraisals allegation. The Commission finds that
the performance appraisals allegation is properly dismissed pursuant
to �1614.107(b) for untimely EEO Counselor contact. Because of our
disposition we do not address whether the issue of performance appraisals
was properly dismissed for failure to cooperate.
The Commission finds that the working conditions allegation, as described
in appellant's letter dated May 5, 1997, is properly dismissed for
untimely EEO Counselor contact pursuant to �1614.107(b). Because of our
disposition we do not address whether the working conditions allegation
was also properly dismissed on other grounds.
The Commission finds that all of appellant's allegations concerning her
Office of Workers' Compensation Programs (OWCP) claims are collateral
attacks on decisions rendered by the OWCP (which is part of the Department
of Labor) and are therefore properly dismissed for failing to state a
claim pursuant to �1614.107(a). Because of our disposition we do not
address whether the OWCP allegations were also properly dismissed on
other grounds.
The agency's decision 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
October 9, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations