01A24657_r
03-24-2003
Lois Thompson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lois Thompson v. Department of Veterans Affairs
01A24657
March 24, 2003
.
Lois Thompson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24657
Agency No. 200J-0552-2002102334
DECISION
In an EEO complaint dated May 8, 2002, complainant claimed that she
was discriminated against on the bases of her race (African-American)
and color (black) when: (1) on January 9, 2002, she was reassigned from
her position with the American Indian/Hispanic Outreach Program to a
position at the Locked Psychiatric Ward; (2) on March 4, 2002, she was
reassigned to a position in Domiciliary Care for Homeless Veterans; and
(3) she has a heavier workload than employees outside her race and color.
Complainant stated that she has been subjected to disparate treatment
and a general racial bias in the workplace.
By agency decision dated July 25, 2002, the agency dismissed the claims
concerning the reassignments pursuant to 29 C.F.R. �1614.107(a)(4),
on the grounds that complainant elected to pursue the matter in a
negotiated grievance procedure that permits allegations of discrimination.
The agency determined that complainant's reassignment to the Locked
Psychiatric Ward was raised in a grievance prior to the filing of
the formal EEO complaint. The agency noted that on March 4, 2002,
complainant was issued a memorandum indicating the reassignment was not
effected according to the procedure outlined in the master agreement.
According to the agency, it did not admit that the reassignment to the
Locked Psychiatric Ward was discriminatory. The agency also dismissed
this claim pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of
failure to state a claim. The agency determined that complainant
failed to state how the reassignments have caused her to suffer harm
with respect to a term, condition, or privilege of her employment.
With regard to the claim concerning a heavier workload, the agency
dismissed this claim pursuant to 29 C.F.R. �1614.107(a)(2), on the
grounds that this matter was not brought to the attention of an EEO
Counselor and is not like or related to a matter that has brought to
the attention of an EEO Counselor. The agency determined that the EEO
Counselor's report indicated that complainant did not state that she had
a larger workload than other employees regardless of their race or color.
Finally, the agency determined that with the exception of the reassignment
and workload issues, complainant has only provided general statements
such as disparate treatment and a general racial bias in the workplace.
On appeal, complainant states that she did not realize that she had been
discriminated against until March 4, 2002, when she received the 3rd
step grievance report. Complainant states that she then learned that
the individual assigned to her rightful position was a white employee.
Complainant further states that the only other individual transferred from
the American Indian/Hispanic Outreach Program was also African-American.
According to complainant, she initiated a grievance with respect to only
the January 9, 2002 reassignment as it related to seniority. With regard
to her heavy workload, complainant maintains that she raised this issue
during informal EEO counseling by referencing the fact that she has been
required to learn and work two different programs. Complainant states
that she was also assigned, as a collateral duty, the job she initially
performed in the American Indian/Hispanic Outreach Program prior to
January 9, 2002. Complainant argues that the alleged actions constitute
harassment against her.
In response, the agency asserts that complainant's sole claim during EEO
counseling involved reassignment. The agency maintains that the workload
issue was not even raised in the formal complaint. The agency argues that
complainant elected to pursue her reassignment claim under a negotiated
grievance procedure that permits claims of discrimination. The agency
notes with regard to the reassignments that although complainant worked in
three different programs, she was reassigned twice rather than the three
occasions claimed by complainant. The agency states that complainant's
reassignment to Domiciliary Care for Homeless Veterans was offered to her
after her 3rd step grievance resulted in a determination that seniority
should have been used in the previous reassignment.
The Commission finds with regard to the January 9, 2002 reassignment
that the agency properly dismissed this claim pursuant to 29
C.F.R. �1614.107(a)(4), on the grounds that complainant elected to raise
the matter in a negotiated grievance procedure that permits allegations
of discrimination. By filing a grievance prior to filing the instant
complaint, complainant made an election to proceed through the negotiated
grievance process. Once complainant made such an election she could no
longer file a complaint on the same matter. Accordingly, the agency's
dismissal of claim (1) was proper.
With regard to the reassignment of complainant on March 4, 2002, we find
that this matter was not previously raised in the negotiated grievance
process. We also find that the matter of a reassignment concerns the
terms, conditions, and privileges of complainant's employment, and
therefore complainant has stated a claim. The agency's dismissal of
claim (2) was therefore improper.
As for complainant's claim concerning a heavy workload and a general
racial bias in the workplace (claim (3)), we find that this claim does
not establish that complainant suffered harm to a term, condition, or
privilege of her employment. Further, we find that the claim of the
heavy workload and unspecified incidents showing a general racial bias
in the workplace, and the reassignment set forth in claim (2) (which we
are remanding) are not of sufficient severity or pervasiveness to state
a claim of harassment. Therefore, we find that claim (3) fails to state
a claim and the agency's dismissal of claim (3) was proper.
To the extent that complainant may be alleging that she was reassigned on
a third occasion, the Commission finds that such a claim fails to state
a claim because complainant has failed to show that she was reassigned.
The agency argues that complainant was only reassigned twice and
complainant has not explained the nature of her purported reassignment
on a third occasion. It is not clear that complainant is raising such
an incident of a third reassignment, but she appears at one time to have
considered this incident part of claim (3). Therefore, we still find
that claim (3) is properly dismissed for failure to state a claim.
The agency's dismissal of claims (1) and (3) is AFFIRMED. The agency's
dismissal of claim (2) is REVERSED and we REMAND claim (2) to the agency
for further processing in accordance with this decision and the Order
herein.
ORDER (E0900)
The agency is ordered to process the remanded claims 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
March 24, 2003
__________________
Date