01A21199
03-19-2003
Laura A. Jackson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Laura A. Jackson v. Department of Veterans Affairs
01A21199
03-19-03
.
Laura A. Jackson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A21199
Agency No. 200O7-654-2001300263
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision, dismissing her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of disability (physical and mental) and reprisal for prior
EEO activity when:
Claim A.
On October 11, 1997, she was forced to resign due to her disability;
Claim B.
On or about October 1, 2002, EEO counselor, Office of Resolution
Management (ORM) Palo Alto Field Office, denied her request for an
extension during counseling to obtain additional information in support
of your complaint;
On or about June 21, 2001, an EEOC decision advised her to return to
the agency to process the issue of involuntary resignation using the
date of contact of October 26, 1997. She stated that the ORM did not
process her formal complaint;
Since April 2001, she had not received a response from ORM Office of
Policy and Compliance, Washington, D.C., regarding her complaint of
dissatisfaction with the EEO process;
In February 2001, the agency would not provide an agency code identifier
that resulted in her Office of Workers' Compensation Program (OWCP)
Form, CA-2, being incomplete and unprocessed; thus, she was unable to
provide new evidence on her OWCP claim;
On or about February 2001, an EEO Counselor, ORM West Los Angeles Field
Office, was offensive to her and refused to give her anything in writing
so that she could file a formal complaint to the Merits System Protections
Board (MSPB). Subsequently, she filed an appeal to the MSPB to get her
job back;
On or about June/July 1998, the OWCP determined that she had an emotional
problem. She stated that the agency denied that she had a paper cut on
August 31, 1996;
The agency and/or the ORM Palo Alto Field Office refused to process
and misstated the bases on her EEO complaints, dated October 7, 1997,
and October 23, 1997; and
From April 1995 through May 1995, the agency retaliated against her
because of her husband's involvement in the EEO process and her disability
and would not promote her.
In its final agency decision, the agency dismissed claim A pursuant to 29
C.F.R. � 1614.107(a)(1), for stating the same claim that is pending before
or has been decided by the agency or the EEOC. The agency determined
that claim B, Nos. 1, 2, 3, 5, and 7 alleged dissatisfaction with the
processing of a previously filed complaint, and the agency dismissed
these complaints pursuant to 29 C.F.R. � 1614.107(a)(8). Finally,
the agency dismissed claim B, Nos. 4, 6, and 8 pursuant to 29 C.F.R. �
1614.107(a)(2), because complainant failed to contact an EEO Counselor
in a timely manner.
Claim A
In Laura A. Jackson v. Department of Veterans Affairs, EEOC Petition
No. 03A10037 (June 21, 2001), the Commission observed that the MSPB
denied jurisdiction over complainant's mixed case appeal, alleging that
she involuntarily resigned, which constituted a constructive discharge.
We noted that, when the MSPB has denied jurisdiction in such matters,
there is little point in continuing to view the matter as a "mixed case"
as defined by 29 C.F.R. � 1614.302(a). Thus, the case was considered a
"non-mixed" matter which required processing. See generally Schmitt
v. Department of Transportation, EEOC Appeal No. 01902126 (July 9, 1990);
29 C.F.R. � 1614.302(c)(2)(i) and (ii). The Commission administratively
closed EEOC Petition No. 03A10037 and referred the matter to the agency
for further processing.<1>
Inasmuch as the agency asserts that complainant states the same claim
that has been decided by the agency on February 28, 2000, the agency
fails to recognize that complainant timely filed her mixed case appeal
prior to filing her January 5, 2001 EEO complaint. Because complainant
first filed a mixed case appeal, the agency should have promptly notified
complainant in writing of her right to contact an EEO counselor within 45
days of receipt of the MSPB decision, finding that it lacked jurisdiction,
and the agency should have further notified her of her right to file an
EEO complaint. See 29 C.F.R. � 1614.302(b). Therefore, pursuant to our
order in EEOC Petition No. 03A10037, requiring the agency to process
complainant's claim as a "non-mixed" matter, the agency's decision to
dismiss claim A for stating the same claim that is pending before or has
been decided by the agency or the EEOC was improper. The decision is
reversed and remanded for further processing pursuant to the Order below.
Claim B, Nos. 1, 2, 3, 5, and 7
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides for the dismissal of
spin-off complaints, which are complaints about the processing of existing
complaints. It provides instead that complaints about the processing of
existing complaints should be referred to the agency official responsible
for processing, and/or processed as part of the original complaint, as
set forth in Section IV, D of the Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-14 (November 9, 1999).
Therefore, we affirm the agency's finding with respect to claim B,
Nos. 1, 2, 3, 5, and 7. We note that the agency official responsible
for the quality of complaints processing should earnestly attempt to
resolve complainant's dissatisfaction with the complaints process as
early and expeditiously as possible. EEO MD-110, 5-25.
Claim B, Nos. 4 and 6
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). With respect to claim B, No. 4,
complainant alleged that, in February 2001, the agency would not provide
an agency code identifier that resulted in her OWCP Form, CA-2, being
incomplete and unprocessed; thus, she was unable to provide new evidence
to support her OWCP claim. With respect to claim B, No. 6, complainant
alleged that, on or about June/July 1998, OWCP determined that she had
an emotional problem. She stated that the agency denied that she had
a paper cut on August 31, 1996. The proper forum for complainant to
have raised her challenges to actions which occurred during the OWCP
proceeding was at that proceeding itself. It is inappropriate to now
attempt to use the EEO process to collaterally attack actions which
occurred during the OWCP process.
Claim B, No. 8
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the Equal Employment
Opportunity counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
Complainant did not initiate contact with an EEO counselor until August
31, 2001, which is more than 45 days after the agency's action. In claim
B, No. 8, complainant alleged that, from April 1995 through May 1995,
the agency retaliated against her because of her husband's involvement
in the EEO process and her disability and would not promote her.
Complainant alleges on appeal that she filed her earliest informal EEO
complaint on October 14, 1997 on issues relating to disability and
involuntary resignation. Even assuming that complainant alleged in
the October 14, 1997 informal EEO complaint that she was not promoted,
she fails to present evidence that she contacted an EEO counselor within
45 days of the April 1995/May 1995 incident. Therefore, we find that
the agency properly dismissed claim B, No. 8 for untimely EEO counselor
contact pursuant to 29 C.F.R. � 1614.105(a)(1).
Accordingly, we AFFIRM the agency's decision with respect to claim B,
Nos. 1-8, and we REVERSE and REMAND claim A for continued processing in
accordance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim, namely on October
11, 1997, complainant was forced to resign due to her disability, in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
___03-19-03_______________
Date
1 The order in EEOC Petition No. 03A10037
stated:
Petitioner is advised that by operation of 29 C.F.R. � 1614.302(b),
the agency is required to process her allegations of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. � 1614.105 et seq. The agency
shall notify the petitioner of the right to contact an EEO counselor
within forty-five (45) days of receipt of this decision, and to file an
EEO complaint, subject to 29 C.F.R. � 1614.107. The date on which the
petitioner filed the appeal with the MSPB shall be deemed the date of
initial contact with the EEO counselor. Petitioner shall have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within thirty
(30) calendar days of the date that this decision is received.