01A40990_r
04-30-2004
Melody Ramsey, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Melody Ramsey v. Department of Veterans Affairs
01A40990
April 30, 2004
.
Melody Ramsey,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40990
Agency No. 2003-0888-2003102907
DECISION
Complainant appeals to the Commission from the agency's October 2, 2003
decision dismissing her complaint for failure to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1). Complainant alleges discrimination on the
basis of disability when on or about May 9, 2003, she was barred from
visiting or using Fort Logan National Cemetery for a period of one year
beginning June 1, 2003. The agency dismissed complainant's complaint for
failure to state a claim finding that complainant was not an aggrieved
person because she in not an employee or applicant for employment.
Complainant argues, on appeal, that she was an applicant for employment.
The record indicates that complainant is a widow of a Merchant Marine
whose remains are buried at Fort Logan National Cemetery. Complainant
indicates, on appeal, that she spent much time at the cemetery performing
volunteer work. According to complainant, "[m]uch of the volunteer
work, more than 80 hours, was weeding, picking up cigarette butts,
and trash and cleaning goose droppings from the headstones caused
because the geese were chased by and panic stricken from dog attacks."
Complainant alleges that sometime in February 2003, she had discussions
with an on site supervisor regarding her "need for employment, including
[her] health insurance predicament, [her] age, [her] pension, etc."
The on site supervisor "offered that [she] begin again with weeding
cemetery section 27 where [her] husband is buried." When complainant
asked "whether the work would be for pay, for future eligibility for a
regular job with benefits and more." However, the on site supervisor
said it would be "unpaid volunteer work for now."
The agency contends that complainant is not an employee or applicant
for employment. The record contains a letter dated June 26, 2003,
from the Chief of Voluntary and Pastoral Care Services indicating that
"[complainant] is not now nor has she been a registered volunteer either
at the Denver VA Medical Center or at Ft. Logan National Cemetery."
The record also contains a memorandum dated July 7, 2003, from the Chief
of Human Resources Management Service indicating that after checking
"all Merit Promotion Files announced within the last two years for
positions located at the Fort Logan National cemetery. . . [complainant]
did not submit an application for any of [the] positions."
We find that complainant is not an employee or applicant for employment
and therefore, not an aggrieved person under the regulations. Thus,
the agency's dismissal for failure to state a claim is proper.
The agency's decision dismissing complainant's complaint 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
April 30, 2004
__________________
Date