01a52179
09-15-2005
Karen R. Braggs, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Karen R. Braggs v. Department of Veterans Affairs
01A52179
09-15-05
.
Karen R. Braggs,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52179
Agency No. 2001-0544-2003104137
Hearing No. 140-2004-00262X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against her (1) on
the basis of race (African American) when, on July 28, 2003, her request
to change her tour of duty from her schedule of 4 pm -12 midnights to a
schedule of 8am-4:30 pm on Wednesdays was denied; and (2) on the bases
of race and reprisal for prior EEO activity when, on November 27, 2003,
her supervisor changed her duty hours without discussing it with her,
and, on November 26, 2003, her supervisor scheduled her to work nine
(9) consecutive days, beginning on November 25, 2003.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
2. 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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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, Director
Office of Federal Operations
_____09-15-05_____________
Date
1 The AJ properly found that issue (2)
fails to state a claim because a one time schedule change did not render
complainant aggrieved, and complainant failed to provide any evidence
that she worked 9 consecutive days. See 29 C.F.R. � 1614.107(a)(1).
Indeed, the relevant time cards indicate that complainant did not work
on Thursdays during the identified period.
2 On appeal, complainant alleges that the agency failed to amend her
complaint to include additional issues of discrimination. However,
the record reflects that, on November 25, 2003, complainant asked the
agency to amend Agency Case No. 2001-0544-2003-104137 to include the two
claims that appear in issue (2), and on May 11, 2004, her complaint was
so amended. The record further reveals that complainant contacted an EEO
Counselor on May 13, 2004, alleging that management discriminated against
her by charging her with AWOL on May 9, 2004, suspending her for the same,
and harassing her. See Agency Case No. 2001 -0544-2004-102719. We find,
however that, while the EEO Counselor issued a Notice of Final Interview
on the three claims on June 10, 2004, the record does not indicate
that complainant filed a formal EEO complaint regarding these issues.
Moreover, the AJ properly found that complainant failed to raise these
issues as provided for in the Amendment and Consolidation of Complaints
section of the Acknowledgment and Order, waiting instead to raise the
issues in the pre-hearing report and response to the Agency's Motion
to Dismiss. Since complainant never filed a formal complaint on the
three issues, nor did she raise the issues before the AJ as directed
by the Amendment and Consolidation of Complaints section, these issues
cannot be reviewed by the Commission. See 29 C.F.R. � 1614.106 (b).