05960362
11-12-1998
Sharon K. Mitchell, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sharon K. Mitchell v. Department of Veterans Affairs
05960362
November 12, 1998
Sharon K. Mitchell, )
Appellant, )
) Request No. 05960362
v. ) Appeal No. 01951941
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION ON REQUEST TO RECONSIDER
On March 19, 1996, the Equal Employment Opportunity Commission
received a timely request from the Department of Veterans Affairs
(hereinafter referred to as the agency) to reconsider the decision in
Sharon K. Mitchell v. Jesse Brown, Secretary, Department of Veterans
Affairs, EEOC Appeal No. 01951941 (February 21, 1996). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence which
tends to establish one or more of the following three criteria: new and
material evidence is available that was not readily available when the
previous decision was issued, 29 C.F.R. �1614.407(c)(1); the previous
decision involved an erroneous interpretation of law or regulation,
or material fact, or a misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth herein, the agency's request is granted in
part.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
reversed the agency's dismissal of a number of issues raised in
appellant's complaint.
BACKGROUND
Appellant filed two EEO complaints in December 1993 and May 1994, both of
which were dismissed by the agency. Appellant filed a third complaint
in August 1994 in which she alleged she was discriminated against based
on sex and reprisal with regard to 18 different issues (Issues 1-18),
including:
(1) this complaint is an addendum to the previous complaints of December
2, 1993, and June 1, 1994, because these discriminatory activities are
a continuation of previously cited activities - harassment, disparate
treatment, and reprisal;
(2) her present complaint was the continuation of the harassment and
reprisal to which she had been subjected to for having represented an
employee in an EEO case on January 30 and 31, May 26, and June 17, 1992,
and for filing two complaints on December 2, 1993, and June 1, 1994;
(3) on July 7, 1994, she was told that her job was not viable;
(4) on July 1, 1994, she submitted a document regarding the intent to
file an unfair labor practice;
(4a) on July 8, 1994, she helped negotiate an AWS schedule;
(4b) on July 11, 1994, she provided union representation during an EEO
investigation;
(4c) on July 15 and 22, 1994, she met with management as an employee's
union representative;
(5) she and an employee she was representing had to be very specific
about their meeting with a particular management official (MO 1);
(6) on July 26, 1994, another management official (MO 2) told her that
a document she had filed was too confusing;
(7) on July 27, 1994, an employee informed appellant that she had been
deactivated and, although written confirmation was required regarding
her deactivation, none was provided;
(8) on July 28, 1994, she was told that she could only represent employees
on a personal level as a friend;
(9) she was humiliated and embarrassed by having to tell employees that
she would not be able to finish their cases;
(10) on July 29, 1994, she was embarrassed and humiliated when MO 1 told
her that she had heard appellant was only allowed to represent employees
"as a friend or something like that";
(11) she was subjected to continuous, pervasive, hostile, and abusive
reprisal;
(11a) her relationships with co-workers were poisoned;
(11b) management was willing to work out cases of employees represented
by a male union representative but was unwilling to work with her;
(11c) MO 2 complained about her to a male union representative;
(11d) the agency's actions resulted in a man becoming president of the
union;
(11e) the individual who became president of the union attempted to stop
appellant from actively representing union cases;
(12) management tried to get her off of the EEO Commission;
(13) as a result of a hostile environment, appellant was systematically
edged off of the Black Employment Commission, prevented from providing
dancing lessons to veterans, and had her recertification class for CPR
canceled;
(14) as a result of the agency's discrimination she has become depressed,
has used extensive sick leave, has been in therapy, on medication, and
in the hospital, and "will never regain the confidence" that she used
to have; and
(15) as a result of pressures from management she is being forced to
resign as chief steward;
(16) management has failed to follow EEO policies concerning her EEO
complaints;
(17) she has been discouraged from providing pertinent information
regarding her EEO complaints; and,
(18) both her reputation as Chief Steward and character have been
maligned.
In a final agency decision (FAD) dated December 28, 1994, the agency
accepted Issue 3 and dismissed the other 17 issues. In particular,
the agency dismissed Issues 4-10, 12, 15, and 18 under the theory that,
because they involved appellant's performance as a union steward, they
did not state actionable claims. With regard to Issues 11, 13, 16,
and 17, the agency found that they were identical to issues which had
already been raised by appellant in a prior complaint.<1>
Appellant appealed, and the prior decision reversed the agency's dismissal
of Issues 4 through 10, 12, 15, and 18. In support of that determination,
the decision cited the holding in Lowery v. U.S. Postal Service, EEOC
Request No. 05890918 (October 20, 1989) for the proposition that, if an
individual alleges that management has discriminatorily interfered with
her union activities, she has stated a claim. The decision also vacated
the dismissal of Issues 1, 2, 11, 13, 14, 16, and 17. With regard to
Issues 11, 13, 16, and 17, the decision noted that the issues to which
they were allegedly identical were currently the subject of a supplemental
investigation. The decision found that, because the purpose of that
investigation was to clarify the nature of those issues, dismissing
Issues 11, 13, 16, and 17 for being identical to them was premature.
For this reason, the decision ordered the agency to conduct a supplemental
investigation to clarify those four issues. Finally, because appellant
had alleged a continuing violation, the decision ordered the agency to
investigate whether all 18 issues, and specifically Issues 1, 2, and 14,
should be accepted under a continuing violation theory.
In support of its request to reconsider, the agency initially argues that
the prior decision should be reopened with regard to the ruling concerning
Issues 1, 2, and 14. Specifically, the agency asserts that whether or
not these issues should be accepted under a continuing violation theory
is not relevant, insofar as they do not state claims. The agency argues
further that it should not be required to process Issues 7, 8, 10, 11(d),
11(e), and 15, to the extent they involve actions taken by union members
rather than management officials.<2>
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
agency's request for reconsideration meets the criterion of 29
C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission
to grant the request in part.
As discussed, the prior decision ordered the agency to consider
whether Issues 1, 2, and 14, along with the other 15 issues, should
be accepted under a continuing violation theory. We note, however,
that this theory is only relevant in determining whether an issue(s)
has been raised in a timely manner. See United Air Lines v. Evans,
431 U.S. 553 (1977); Rebo v. Department of the Air Force, EEOC Request
No. 05900290 (May 10, 1990). The continuing violation doctrine is not
relevant to the legal issue of whether an individual's allegation states
a claim. See Meros v. Department of Commerce, EEOC Request No. 05930760
(September 23, 1993). In this case, the agency did not dismiss Issues 1,
2, and 14 for untimeliness but, rather, for failure to state a claim.
Therefore, we find that it is not relevant whether Issues 1, 2, and 14,
as well as the other issues raised, constitute a continuing violation.
In considering whether Issues 1, 2, and 14 state claims, we find that
they do not. Issue 1 is merely a statement by appellant that her third
complaint was an addendum to her first two complaints, while Issue 2
is essentially a definition of the third complaint. These clearly do
not constitute allegations of discrimination. Furthermore, Issue 14 is
merely a description of the effects of the alleged discrimination and,
although it is potentially relevant to the question of damages, it does
not state a claim of discrimination. Therefore, the Commission finds
that these three issues were properly dismissed by the agency.
The Commission has held that, except in limited circumstances, the
EEO process is not a mechanism to attack internal union matters or
proceedings, and such claims are properly dismissed pursuant to 29
C.F.R. � 1614.107(a). See Bray v. Department of the Treasury, EEOC Request
No. 05940748 (March 23, 1995). In this case, we find that Issues 7,
8, 10, and 11(e) involve actions which were taken against appellant
by individuals who were acting in their capacity as union officials.
Issue 11(d) concerns a union election. Therefore, we agree that these
issues were properly dismissed. See Id.; Burton v. Department of the Navy,
EEOC Request No. 05950515 (September 19, 1996). Conversely, although
Issue 15 involves union matters, it also involves an allegation that
management officials discriminatorily influenced this matter. Therefore,
we find that Issue 15 states an actionable claim of discrimination.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission grants the request,
in part. The decision in EEOC Appeal No. 01951941 (February 21, 1996)
is AFFIRMED with regard to Issues 3, 4, 4(a), 4(b), 4(c), 5, 6, 9, 11,
11(a), 11(b), 11(c), 12, 13, 15, 16, 17, and 18; and REVERSED with
regard to Issues 1, 2, 7, 8, 10, 11(d), 11(e), and 14. The agency
shall comply with the Order in our previous decision as stated below,
with modifications. There is no further right of administrative appeal
on a decision of the Commission on this Request for Reconsideration.
ORDER
1. The agency is ordered to process Issues 3, 4, 4(a), 4(b), 4(c),
5, 6, 9, 12, 15, and 18 in accordance with 29 C.F.R. Section 1614.
The agency shall acknowledge to appellant that it has received the
remanded allegations within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to appellant a copy of
the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing,
the agency shall issue a final decision within sixty (60) days of receipt
of appellant's request. A copy of the agency's letter of acknowledgment
to appellant 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.
2. The agency is ordered to conduct a supplemental investigation to
clarify Issues 11, 11(a), 11(b), 11(c), 13, 16, and 17 to determine
whether they were previously raised by appellant and decided by the
agency. The agency shall conduct such inquiry and issue either a notice
of processing accepting these issues and/or a final agency decision
dismissing them within sixty (60) calendar days of the date this decision
becomes final. A copy of the notice of processing or final agency
decision must be sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If
the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 (Supp. V 1993). If the appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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:
NOV 12, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 The FAD did not explicitly address sub-issues 4(a) through 4(c) and
11(a) through 11(e). We are assuming, however, that when the FAD refers
to Issues 4 and 11, it is also referring to those sub-issues.
2 The Commission notes that, although some of the allegations appear to
involve actions taken solely in the context of appellant's union activity,
the agency does not argue that these issues fail to state a claim.
For that reason, the Commission shall not address that question and
shall allow the agency to process them.