01A22248_r
03-04-2003
Alice S. Ritchie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alice S. Ritchie v. Department of Veterans Affairs
01A22248
March 4, 2003
.
Alice S. Ritchie,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22248
Agency No. 200H-0632-2001300281
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated February 11, 2002, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination
in reprisal for prior EEO activity when: (1) on August 8, 2001, during a
review of her Official Personnel Folder (OPF), she discovered that several
documents were excluded from her OPF, which she felt adversely affected
the decision of the Nurse Professional Standards Board to recommend
her to Nurse III; and (2) from June 6, 2001 through September 24, 2001,
her supervisor changed her tour of duty separating her two consecutive
days off.
The record reveals that complainant initiated contact with an EEO
Counselor on August 24, 2001. However, in a letter to the agency,
dated September 24, 2001, complainant stated, �I am withdrawing my EEO
complaint of August 24, 2001 as discussed with you today 9/20/01.� In
another letter to the agency, dated September 25, 2001, complainant
informed the agency that she was rescinding her withdrawal. Thereafter,
complainant filed a formal complaint of discrimination on October 5, 2001.
On January 10, 2002, complainant was mailed a Request for Additional
Information letter and asked to provide her reason(s) for rescinding
her complaint. In a statement dated January 24, 2002, complainant's
representative responded that complainant read on the facility's bulletin
board that the U.S. Office of Special Counsel (OSC) handles allegations
of Prohibited Personnel Practice and felt that her allegation concerning
the alteration of her OPF was a prohibited personnel practice and as
such filed a complaint with them. By letter dated September 18, 2001,
from OSC to the complainant, she was informed that it was not their
policy to act on allegations such as hers as they are more appropriately
resolved through the EEO process. Upon notification of their decision,
complainant rescinded her withdrawal.
In its final decision, the agency denied complainant's request to
reinstate her complaint, finding that she withdrew her complaint in a
letter dated September 20, 2001.
The Commission has found that where a complainant "knowingly and
voluntarily withdrew her complaint...the Commission considers the
matter to have been finally abandoned." See Tellez v. Department
of Transportation, EEOC Request No. 05930805 (February 25, 1994).
The Commission has held that a complainant may not request reinstatement
of an informal complaint unless the complaint was withdrawn pursuant to
a settlement agreement. See Allen v. Department of Defense, EEOC Request
No. 05940168 (May 25, 1995). Once a complainant has withdrawn an informal
complaint, absent a showing of coercion, a complainant may not reactivate
the EEO process by filing a complaint on the same issue. Id. To allow such
a practice would, in effect, extend the limitations period for filing a
formal complaint and subvert the need for timeliness and efficiency in
the EEO administrative process.
Upon review, we find that the record supports a finding that complainant
voluntarily withdrew her complaint on September 20, 2001. We note that
the record contains no evidence reflecting that complainant was coerced
into withdrawing her informal complaint. Consequently, the Commission
finds that the agency's decision to deny complainant's request to
reinstate her withdrawn complaint was proper.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
March 4, 2003
__________________
Date