0520090288_burnett
04-01-2009
Betty M. Burnett, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Betty M. Burnett,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520090288
Appeal No. 0120090223
Agency No. 200I-0557-2008103195
GRANT
Complainant timely requested reconsideration of the decision in Betty
M. Burnett v. Department of Veterans Affairs, EEOC Appeal No. 0120090223
(February 6, 2009). EEOC regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b). After a thorough review of the record, it is the decision
of the Commission to grant complainant's request.
At the time of the events at issue, complainant was a Community Nursing
Assistant working under contract with the agency at the Carl Vinson
Veterans Affairs Medical Center in Dublin, Georgia. In a formal EEO
complaint filed on June 20, 2008, complainant alleged that she was
intentionally discriminated against on the basis of her age when,
effective May 31, 2008, her contract with the agency was terminated.
On September 18, 2008, the agency issued a final decision dismissing the
complaint, pursuant to 29 C.F.R. �1614.107(a)(1), for failure to state
a claim asserting that complainant lacked standing to file a complaint
because she was not a federal employee, but instead a contractor not
covered by the 29 C.F.R. Part 1614 process. Complainant appealed the
dismissal to this Commission. In Betty M. Burnett v. Department of
Veterans Affairs, EEOC Appeal No. 0120090223 (February 6, 2009), the
Commission affirmed the agency's dismissal based on the evidence of
record at that time and the arguments of the parties.
On request for reconsideration, complainant presented evidence not
available to the Commission at the time it issued its initial decision in
this matter. Complainant has submitted a letter from the agency's Office
of Resolution Management, dated December 3, 2008, in which the agency
rescinded its September 18, 2008 dismissal of the instant complaint and
assigned the case for an investigation and further processing. The letter
indicated that based on questions answered by agency management, it was
determined, under the common law of agency test, that complainant was
an agency employee because of the degree of control agency management
exerted over her work and the decision to terminate her contract.1
The letter went on to inform complainant that her complaint was being
assigned to an investigator for an investigation on the merits.
It is not clear why the agency did not inform the Commission of its
December 2008 decision to rescind the dismissal before the Commission
issued its February 2009 initial decision on the appeal from that
dismissal. However, in light of the agency's decision to rescind its
dismissal decision and continue processing complainant's June 20 2008
complaint, it is the decision of the Commission to VACATE its decision in
EEOC Appeal No. 0120090223. Following the agency's continued processing
of the complaint, complainant may file another appeal with the Commission
if she is dissatisfied with any subsequent final decision issued by
the agency.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0408)
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
April 1, 2009
__________________
Date
1 It appears that the questions answered by management were submitted
after the agency issued its dismissal decision and were not available
to this Commission during the initial appeal.
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2
0520080809
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0520090288