01993979_r
05-29-2003
Luvon Alston, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Luvon Alston v. Department of Veterans Affairs
01993979
May 29, 2003
.
Luvon Alston,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01993979
Agency No. 98-2190
DECISION
Complainant appealed to this Commission from the agency's March 25, 1999
dismissal of her employment discrimination complaint. In her complaint,
complainant alleged harm on the bases of color (black) and sex (female)
when:
Complainant was not promoted on October 7, 1996;
Complainant was not reinstated on December 22, 1996;
Complainant received her performance appraisal on May 20, 1997;
Complainant was harassed on June 3, 1997; and
On August 6, 1998, complainant was harassed and her working conditions
were impacted when she was given several different job assignments
(one right after the other) before she could complete one job.
In its March 25, 1999 decision, the agency dismissed claims (1) and (2)
for stating the same claim raised in a prior complaint, and in a civil
action. It dismissed claims (3) and (4) for untimely counselor contact,
noting that complainant's first contact with an EEO Counselor for the
present complaint occurred on August 12, 1998. According to the agency,
complainant never raised these issues in her prior complaint that was
pending at the time the actions occurred, and failed to explain her
delay in raising the issues with an EEO Counselor.<1>
The agency may dismiss claims alleging the same matters pending before
or decided by the agency or Commission. 29 C.F.R. � 1614.107(a)(1).
The record includes a copy of the agency's final decision in complainant's
prior EEO complaint, dated May 18, 1998. Therein, complainant raised
claims (1) and (2). To the extent that claim (1) is somehow different
from the claims raised in the May 18, 1998 complaint, we find that
complainant failed to show she was aggrieved by any specific non-selection
or that the claim was timely raised with an EEO Counselor. Accordingly,
the agency's dismissal of claims (1) and (2) was proper.
Complainant also must raise claims of discrimination within forty-five
(45) days of their occurrence. See 29 C.F.R. � 1614.105(a)(1).
The agency may dismiss claims that fail to comply with this time limit.
See 29 C.F.R. � 1614.107(a)(2). In the present case, complainant
failed to raise claims (3) or (4) within a year of their occurrence.
She failed to provide any justification for her delay. Therefore,
the agency's dismissal of claims (3) and (4) also was proper.
CONCLUSION
Accordingly, the agency's dismissal 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
May 29, 2003
__________________
Date
1The agency accepted claim (5) for
investigation. It continued to process this claim, and on February 4,
2000, issued a decision on its merits. Complainant never appealed the
agency's February 4, 2000 decision with regard to claim (5). Since all
of complainant's claims have been adjudicated, the Commission finds that
the agency's March 25, 1999 decision is no longer a partial dismissal,
and the Commission need only address claims (1)-(4) in the instant appeal.