0120093263
12-15-2009
Margarita Colon-Rodriguez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Margarita Colon-Rodriguez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093263
Agency No. 200306862009102665
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 29, 2009, 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.
The complaint is accepted. 29 C.F.R. � 1615.405(a).
Complainant was terminated effective April 10, 2009, from her temporary
limited appointment position of Graduate Psychologist, GS-180-11,
with the agency's Central Texas Veterans Health Care System in Waco,
Texas on the ground that she did not have a doctoral degree from a
college or university whose psychology curriculum was approved by the
American Psychological Association (APA). In the termination letter,
the agency recounted that while complainant received a doctoral degree,
it was not from a school whose program was accredited by the APA.
Complainant filed an EEO complaint on the termination and other matters,
which was accepted for investigation by the agency on May 22, 2009,
under Agency No. 2003VI172009102289.
Thereafter, complainant filed the complaint before us. Therein,
she alleged that she was discriminated against based on reprisal for
prior protected EEO activity when on April 20, 2009, she learned that
a management official with the agency's Eastern Kansas Healthcare Care
System provided information concerning her medical accreditation and/or
medical internship certificate to individuals at her work facility in
Waco which contributed to her termination.
The agency dismissed the complaint for stating the same claim as in the
termination complaint. It also found that the complaint did not state
a claim. 29 C.F.R. � 1614.107(a)(1).
On appeal, complainant initially argued that the two complaints were
not identical and her complaint stated a claim. In opposition to the
appeal, the agency argued that the claim in the instant complaint that
the Kansas management official provided documentation on which Waco
management relied to terminate her is part of the larger claim that she
was terminated due to unlawful employment discrimination. The agency
indicated that as such, the involvement of the Kansas management official
in complainant's termination, if any, should be investigated as part of
the prior termination complaint. In response to the agency's opposition,
complainant concedes that complaint 200306862009102665 can be dismissed
based on the agency's representation that that the Kansas management
official's involvement in the termination is part of the termination
complaint, and on condition that this official's involvement be closely
investigated.1
We agree with the agency's finding that the two complaints are identical.
The second complaint simply raises new evidence in support of the first
complaint that the removal was discriminatory. Accordingly, the FAD
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
December 15, 2009
__________________
Date
1 Agencies must investigate all accepted claims in accordance with 29
C.F.R. � 1614.108.
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0120093263
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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