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.