01981815
12-21-1999
Virginia A. Narsete, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Virginia A. Narsete v. Department of Veterans Affairs
01981815
December 21, 1999
Virginia A. Narsete, )
Complainant, )
)
v. ) Appeal No. 01981815
) Agency No. 971574
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
In December 1997, complainant filed a timely appeal with this Commission
from a final agency decision pertaining to her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> In her complaint,
complainant alleged that, related to a sexual harassment case filed by a
former co-worker, she was subjected to discrimination on the bases of sex
(female) and in reprisal for prior EEO activity when:
She was harassed by the agency's regional counsel during her witness
deposition, with questions totally unrelated to the sexual harassment
case;
The agency's regional counsel asked intimidating questions concerning
matters covered under a confidential settlement agreement with the
Director of the agency's Medical Center where she was formerly employed,
indicating that the Director violated the settlement agreement entered
into in January 1994;
The (now former) Director of the agency's Medical Center attempted to
"squash" the investigation in the sexual harassment case to protect
the alleged harasser; and
The former Director tried to obstruct justice through "selective
enforcement," threats and intimidation.
Pursuant to EEOC Regulations, the agency dismissed complainant's claims
for failure to state a
claim. Specifically, the agency determined that complainant had not
sufficiently alleged or shown that she was aggrieved by the alleged
harassment or violation of a prior settlement agreement.
On appeal, complainant states that she resigned from her employment
with the agency on or about February 5, 1995. The record indicates
that complainant's deposition in the sexual harassment case filed by a
former co-worker occurred on December 10, 1996.
Volume 64 Fed. Reg. 37644, 37656 (1999) (to be codified as 29
C.F.R. �1614.107(a)(1)) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin,
age or disabling condition. 29 C.F.R. �1614.103(a); �1614.106(a).
The Commission's federal sector case precedent has long defined an
"aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint for failure to state a claim. Here,
all of the complainant's claims are based on her participation, almost
two years after she left the agency, in a sexual harassment case filed by
a former co-worker. Complainant's specific claims are that the agency's
regional counsel asked her harassing and intimidating questions during a
deposition, and that the former Director of the agency's Medical Center
attempted to obstruct her former co-worker's sexual harassment case.
Complainant failed however, to identify a term, condition, or privilege
of her employment with the agency that was affected by the alleged
actions. Therefore, complainant has not shown that she is an "aggrieved"
employee, and her complaint was appropriately dismissed.
As part of her claims, complainant also asserted that the former Director
of the agency's Medical Center violated a settlement agreement entered
into between them in January 1994, by sharing certain information
with the agency's regional counsel. The record reveals, however, that
the referenced agreement entered into by complainant was a last-chance
settlement agreement concerning her continued employment at the agency's
Medical Center. Because no breach of an EEO settlement agreement was
alleged, we will not address this issue. See 64 Fed. Reg. 37644, 37660
(1999) (to be codified as 29 C.F.R. �1614.504).
Accordingly, the agency's final decision is AFFIRMED for the reasons
set forth above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 21, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.