0120083633
01-08-2009
Linda J. Gray, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Linda J. Gray,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083633
Agency No. 200305802008102099
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 31, 2008, 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.
and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. Upon review, the Commission finds that complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for stating
the same claim that was the basis of an earlier complaint.
In a complaint dated June 20, 2008, complainant alleged that she was
subjected to discrimination on the bases of race (African-American),
disability, and national origin (American) when she became aware that
another female employee of a different race and national origin was
accommodated while working in Radiology and subsequently was promoted to a
GS-9 Health Technician position, whereas complainant's on-the-job injury
request to remain in Radiology was not granted. In 2005, complainant was
reassigned to External Affairs after working in Radiology for 28 years.
Briefly, complainant experienced an on-the job injury in April 2005, and
the Office of Worker's Compensation Programs (OWCP) located a position
for her in External Affairs as an Information Receptionist in April
2005. In June 2005, complainant filed a formal EEO complaint alleging
discrimination on the basis of disability when she was permanently
assigned to a clerical position because of her medical restrictions.
In June 2005, she stated there were other employees who were injured
and allowed to remain in Radiology. Although the complaint was accepted
for investigation, complainant withdrew her complaint.
After a review of the record, the Commission finds that the current
complaint states the same claim as was raised in the earlier
complaint. The discovery of a new comparator does not give rise to a
new complaint. Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 8, 2009
__________________
Date
2
0120083633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120083633