01a52531_r
07-28-2005
Susan C. Beckwith, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Susan C. Beckwith v. Department of Veterans Affairs
01A52531
July 28, 2005
.
Susan C. Beckwith,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52531
Agency No. 2003-0666-2004103896
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 20, 2005, dismissing her formal 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. , Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
Complainant, a Nurse Practitioner, filed the instant formal complaint
on October 5, 2004.
On January 20, 2005, the agency issued a final decision. Therein,
the agency determined that complainant claimed that she was the victim
of unlawful employment discrimination on the bases of age, disability,
and �reprisal (previous EEO complaints) with respect to Equal Pay.� The
agency also determined that the instant complaint was comprised of the
following claim:
On or about June 29, 2004, management hired two Mental Health Nurse
Practitioners and compensated their salary through a special pay band
that you are not provided.
The agency dismissed complainant's complaint on the grounds of abuse
of process. The agency stated that complainant filed five EEO
complaints from June 2002 to the filing of the instant complaint,
regarding non-selection and equal pay; and that all five complaints
raise �duplicative and redundant claims of non-selection and/or Equal
Pay Act (EPA)/compensation.� The agency stated that these claims are
�inextricably intertwined� and that none of the complaints resulted in
a finding of discrimination or retaliation by the Commission or a United
States District Court.
The agency noted that two complaints addressing the above referenced
matters were consolidated, that an Administrative Judge (AJ) found no
discrimination in a decision dated July 28, 2004, and that the agency
implemented the AJ's decision on August 30, 2004.<1>
The agency also asserted that complainant filed an untimely formal EEO
complaint, identified as Agency No. 2003-066-2004100420. The agency
found that complainant was knowledgeable of the EEO process because
she had previously filed timely EEO complaints, the only reason that
complainant filed Agency No. 2003-066-2004100420 in an untimely fashion
was to overburden the EEO system.
The agency identified a fourth formal complaint, Agency
No. 2003-0666-2004101458, wherein complainant alleged she was not referred
or selected to a position and that those selectees were provided special
pay bands, which she was not provided. The agency determined that
Agency No. 2003-0666-2004101458 reflected an abuse of process because
complainant did not even apply for the position in question. The agency
noted that this complaint was dismissed for failure to state a claim,
on May 4, 2004.
Finally, regarding the fifth and instant complaint, the agency determined
that complainant did not apply for the Mental Health Nurse Practitioner
positions identified in the complaint, and that it was properly dismissed
on the grounds of abuse of process.
The agency may dismiss complaints that exhibit a clear pattern of misuse
of the EEO process for a purpose other than the prevention and elimination
of employment discrimination. 29 C.F.R. � 1614.107(a)(9). A clear pattern
of abuse of process requires: (i) evidence of multiple complaints filings;
and (ii) allegations that are similar or identical, lack specificity or
involved matters previously resolved; or (iii) evidence of circumventing
other administrative processes, retaliating against the agency's in-house
administrative processes or overburdening the EEO complaint system. Id.
When dismissing cases for misuse of the EEO process, the agency
must strictly adhere to Commission case law regarding abuse of
process. Id. Application of the misuse of the EEO process standard must be
rare, because of the strong policy in favor of preserving a complainant's
EEO rights whenever possible. Equal Employment Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), 5-17, (November 9, 1999) (citing
Love v. Pullman, Inc., 404 U.S. 522 (1972)); Wren v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01932105 (August 19, 1993).
Upon review, the Commission finds insufficient evidence to conclude
that complainant used the EEO process for the purpose of circumventing
administrative processes or overburdening the EEO system. The Commission
notes that although complainant filed four previous EEO complaints,
as cited by the agency, and that these complaints basically stated
common themes concerning non-selections and pay inequalities related
to the Physician Assistant position, the instant complaint concerns
a distinct, separate non-selection/ pay issue related to the Mental
Health Practitioner position. Moreover, we determine that neither the
numerosity nor the subject matter of complainant's claims in the five
cited EEO complaints evidences a clear intent by complainant to utilize
the EEO process for impermissible purposes.
However, although the Commission finds insufficient evidence that
complainant has misused the EEO process, we determine that this matter
is also appropriately analyzed in terms of whether it states a claim.
Complainant fails to indicate any loss of wages, benefits, or how she
otherwise suffered any injury with respect to a term, condition or
privilege of employment as a result of the agency's action. Rather,
complainant claimed that the agency should provide a special band with
a higher salary for her position (Nurse Practitioner) because of the
agency's improper hiring practices for a different position (Mental
Health Nurse Practitioner). We noted that complainant did not attempt
to apply for a Mental Health Nurse Practitioner position. Specifically,
in her formal complaint, complainant stated that she does not want to be
a Mental Health Nurse Practitioner, does not want to perform the duties
of that position. Accordingly, we find that the complaint failed to
state a claim. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Accordingly, the agency's dismissal of complainant's complaint is AFFIRMED
for the reasons set forth herein.
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
July 28, 2005
__________________
Date
1The two consolidated EEO complaints, Agency
Nos. 200M-02-102795 and 200M-03-100544, are currently pending before
the Commission in Appeal No. 01A46098.