01a52026
04-22-2005
Deidra E. Noel, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Deidra E. Noel v. Department of Veterans Affairs
01A52026
04-22-05
.
Deidra E. Noel,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52026
Agency No. 200J05502004104504
DECISION
Deidra E. Noel (complainant) filed an appeal from the November 30, 2004,
final decision of the Department of Veterans Affairs (agency) dismissing
the above-referenced complaint. Complainant claimed a violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
In a formal complaint, complainant claimed discrimination based on race
(black) when she was denied flextime to attend nursing courses online.
In its final decision, the agency dismissed the complaint for untimely
EEO contact and because complainant filed a prior grievance where
the collective bargaining agreement allowed her to raise claims of
discrimination. Complainant contacted an EEO counselor on October 1,
2004, almost six months after she learned, on April 5, 2004, that her
supervisor would not allow her to leave work to take courses. On appeal,
she presented a time line and claimed that others were allowed to use
flextime. The agency noted that she acknowledged that she had learned
of the supervisor's denial in April 2004.
The Commission's regulations require that a complainant bring his/her
complaint to the attention of an EEO counselor within 45 days of
an alleged discriminatory event or the effective date of an alleged
discriminatory personnel action. 29 C.F.R. � 1614.105(a)(2). The record
shows that complainant was told that she would not be allowed to leave
work for nursing classes on April 5, 2004, and she did not contact an
EEO counselor until October 2004. Also, where there is a collective
bargaining agreement that allows an employee to raise a discrimination
claim in the grievance procedure, the Commission's regulations require
the employee to elect between the grievance procedure and the EEO process.
29 C.F.R. � 1614.105(a)(4). Here, complainant filed a grievance in June
2004, electing to proceed in the grievance process. We find that the
agency properly dismissed her complaint.
After a review of the record, including statements and arguments not
addressed herein, based on the reasons above, we find that the agency
properly dismissed the complaint.
CONCLUSION
Accordingly, the agency's decision was proper and 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
____04-22-05______________
Date