01a52243
05-18-2005
Regina Walker, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Regina Walker v. Department of Veterans Affairs
01A52243
May 18, 2005
.
Regina Walker,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52243
Agency No. 200P-0664-2005100438
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, dated January 14, 2005, pertaining to her EEO 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 Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On November 8, 2004, complainant contacted the EEO office regarding claims
of discrimination, and the matter was identified under the captioned
agency number. Informal efforts to resolve complainant's concerns were
unsuccessful. On December 7, 2004, the EEO Counselor issued complainant
a Notice of Right to File a Discrimination Complaint.
On December 10, 2004, complainant submitted by fax a note to the EEO
Counselor. The note contained the following statement:
[Named agency EEO Counselor], will you please withdraw my complaint I am
filing with your office concerning my employment with the VA San Diego
Mission Valley Firm Clinic.
Despite faxing the December 10, 2004 note to the EEO Counselor,
complainant filed a formal complaint on December 22, 2004, claiming that
she was the victim of unlawful employment discrimination on the bases
of race and religion.
On January 14, 2005, the agency issued a final decision. Therein,
the agency determined that the formal complaint was comprised of the
following claims:
Claim A - Termination:
(1) October 29, 2004, complainant discussed with her supervisor that she
wanted to �swap� with another Licensed Vocational Nurse. After hearing
complainant's reasons, the supervisor informed complainant that there
was no opening and she told complainant that she should resign; which
complainant agreed to do.
(2) November 8, 2004, complainant notified her supervisor that she had
changed her mind about resigning.
(3) On November 15, 2004, complainant was informed that if she did not
resign she would be terminated effective November 19, 2004.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency determined that complainant withdrew the
claim associated with her termination, on December 10, 2004. The agency
concluded that complainant forfeited the right to subsequently file a
complaint on the same matter.
On appeal, complainant argues that she no longer wanted a particular EEO
Counselor to assist her, so she �wrote a letter asking her to withdraw my
complaint . . . .� According to complainant, she did not find that the
particular EEO Counselor was helping her, �so I wanted to file a formal
complaint so I didn't have to deal with her [the EEO Counselor] anymore.�
Complainant contends that she thought she �had a choice to either file
with her [the EEO Counselor] or dismiss her and choose a formal filing.�
As noted above, complainant seeks to revoke the withdrawal of her informal
complaint, regarding her termination, because she was purportedly confused
by the effects of her actions. Complainant argues that through the
December 10, 2004 fax correspondence, she merely wanted to cease EEO
counseling with a particular EEO Counselor, but that she nevertheless
intended to file a formal complaint. The Commission finds that the record
supports her assertion that it was not her true intent to withdraw from
the EEO process since within two weeks after faxing the note to the
EEO Counselor, complainant filed her formal complaint. Moreover, we
determine that the matter that is the subject of the instant complaint
addresses a loss or harm regarding a term, condition, or privilege of
complainant's employment. See Diaz v. Department of the Air Force, ,
EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
May 18, 2005
__________________
Date