0120112291
08-17-2011
Annette L. Dorsey, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Annette L. Dorsey,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112291
Agency No. 200305492011101247
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 25, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Voucher Examiner at the Agency’s Dallas, Texas facility.
On February 7, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when, on November 19, 2010, management proposed to reassign
her to the Fee Services section effective January 3, 2011; and when she
was required to provide testimony to an Administrative Board on January
10, 2011.
The Agency dismissed the complaint in its entirety pursuant to 29
C.F.R. § 1614.107(a)(1), in part for stating the same claim as another
complaint, and in part for failure to state a claim. The Agency argued
that the claim concerning the proposed reassignment to Fee Services
had already been resolved when Complainant entered into a settlement
agreement on January 4, 2011 (involving earlier EEO complaints) wherein it
was specifically stated that she would not be assigned to Fee Services.
The Agency further argued that Complainant was not harmed by providing
testimony at the Administrative Board.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant challenges the phrasing
of the claims in her complaint. To that extent, a review of her formal
complaint indicates the Agency accurately captured the essence of
her claims.
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, .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). When the complainant does not
allege he or she is aggrieved within the meaning of the regulations,
the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).
In the instant case, Complainant failed to allege that she suffered a
present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. By virtue of the settlement
agreement she signed in a previous EEO complaint, Complainant was
not and could not be reassigned to Fee Services. Complainant was not
alleged how she was harmed by being required to provide testimony to
the Administrative Board. It is undisputed that no adverse action was
taken against her as a result of her testimony.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 17, 2011
__________________
Date
2
0120112291
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112291