Ma. Luz Reloj, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 30, 1999
01982921_r (E.E.O.C. Apr. 30, 1999)

01982921_r

04-30-1999

Ma. Luz Reloj, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Ma. Luz Reloj, )

Appellant, )

)

v. ) Appeal No. 01982921

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., the Age Discrimination in Employment Act

of 1967, as amended (ADEA), 29 U.S.C. �621 et seq., and Section 501

of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.

The final decision was issued on January 29, 1998. The appeal was

postmarked March 4, 1998. Accordingly, the appeal is considered timely<1>

(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC

Order No. 960, as amended.

On April 14, 1997, appellant filed a formal complaint, alleging that

she was the victim of unlawful employment discrimination on the bases

of race, color, religion, sex, national origin, age, and disability.

On January 29, 1998, the agency issued a final decision. Therein,

the agency determined that appellant's complaint was comprised of five

allegations that were identified in the following manner:

1. [Appellant] wrote to the EEO Officer with an EEO complaint in

August 1996.

2. Met with [an EEO Counselor] on September 9, 1996, and when complainant

returned with documentation she had requested on the 19th of September,

she declared she could not proceed with this informal stage unless

complainant allowed her to use complainant's name. She finally agreed

to give complainant 2 hours to decide yes or no in regard to the use of

her name. In less than two hours she was contacted and given permission

to use complainant's name. At this time she stated it was too late,

she had already talked to them and she was terminating the informal stage.

3. Complainant contacted [an agency EEO Program Manager] in October 1996,

to file an EEO complaint about the handling of her EEO complaint started

in August 1996. She did not respond by appointing a counselor as the

complainant requested, but rather proceeded to justify the behavior of

[the EEO Counselor].

4. Instead of going forward with this complaint against one of her EEO

Counselor, she directed [appellant] to write to [an agency EEO Officer],

which [appellant] did.

5. Complainant wrote [the EEO Officer] on December 12, 1996, and asked

for an impartial counselor from outside the VA Hospital in Reno, Nevada.

His handling of this request was inappropriate, as was [the EEO Program

Manager], and eventually [appellant] was sent a list which contained

[the name of an EEO Counselor].

The agency dismissed appellant's complaint for failure to state a claim.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

In her formal complaint, appellant alleged that the agency improperly

processed her EEO complaints. Appellant states on appeal that the

agency EEO officials denied appellant her EEO rights, misinformed

her of her rights, and refused to process her complaints. We note

that the Commission has held that allegations of improper processing

do not state separate processable claims. See Kleinman v. USPS, EEOC

Request No. 05940579 (September 22, 1994). However, a fair reading of

appellant's complaint reflects that appellant alleged that her contacts

with various agency EEO officials during the processing of a prior

complaint had a chilling effect upon her willingness to participate in

the EEO complaint process. See Pruette v. USPS, EEOC Appeal No. 01951567

(March 10, 1998). Under the circumstances of this case, we therefore

determine that appellant has alleged a harm or loss with regard to a

term, condition or privilege of employment. Accordingly, the agency's

decision to dismiss appellant's complaint was improper and is REVERSED.

Appellant's complaint is REMANDED to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 filed your

appeal with the Commission. 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.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

April 30, 1999

____________________________

DATE Ronnie Blumenthal, Director

1 The dismissal of a complaint or a portion of a complaint may be

appealed to the Commission within thirty (30) calendar days of

the date of the complainant's receipt of the dismissal or final

decision. See 29 C.F.R. �1614.402(a). Because the agency failed

on appeal to supply a copy of the certified mail receipt or any

other material capable of establishing that date, the Commission

presumes that the appeal was filed within thirty (30) calendar

days of the date of appellant's receipt of the final decision.