01984205_r
06-02-1999
Michelle A. Schaefer-Laughrun, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Michelle A. Schaefer-Laughrun, )
Appellant, )
)
v. ) Appeal No. 01984205
)
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 Section 501 of the Rehabilitation Act of 1973, as amended,
42 U.S.C. �2000e et seq. The final agency decision was issued on March
31, 1998. The appeal was postmarked April 27, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
1. The first issue presented is whether the agency properly dismissed
allegations 5 and 7 of appellant's complaint on the grounds of failure
to state a claim.
2. The second issue presented is whether the agency properly dismissed
allegation 8 on the grounds that it was not brought to the attention of
an EEO Counselor and it is not like or related to allegations that were
brought to the attention of an EEO Counselor.
BACKGROUND
Appellant initiated contact with an EEO Counselor on July 29, 1997.
On July 29, 1997, appellant filed a formal EEO complaint wherein she
alleged that she was discriminated against on the basis of her physical
disability (allergies) when:
1. On July 15, 1997, appellant requested that she be placed in a
nursing position, but due to the severity of her allergic reaction,
it was suggested that she fill a clerical or other non-nursing role.
2. On July 15, 1997, it was suggested that appellant had the option
to take a clerical position outside the patient care areas or apply for
medical retirement.
3. Appellant was permanently on the evening shift starting in June 1997.
She stated that when she had to be off due to her last exposure, she was
scheduled for a Monday-Friday day shift. Appellant stated that this is
not common unless one is in training or being disciplined.
4. Management told appellant that she was required to wear a respirator
for the entire length of time she was on duty in the hospital.
5. Appellant stated that if she is placed in any positions other than
nursing, she will not be able to maintain her nursing license.
6. Between July 29, 1997, and October 27, 1997, she was assigned to
the MCCR. Appellant stated that she was assigned duties where she
would be alone without being monitored in a dangerous and uncontrolled
environment. The duties assigned to her in the MCCR are in no way
similar to her training. She was not guaranteed the shift differential
she was earning at the time of her injury and she was not able to make
the weekend and holiday pay she was making as a Licensed Practical Nurse.
7. Appellant was scheduled for repeat allergy testing by the Office of
Workers' Compensation Programs (OWCP) in Jacksonville on October 30, 1997,
so as to obtain a second opinion. Appellant stated that even though she
was tested in August 1997, by a reputable allergist, the OWCP physician
insists on administering the same tests which are extremely painful and
caused her to be treated in the emergency room due to the severity of
her reaction.
8. Appellant was not provided information concerning other employees,
patients or visitors and their chemical exposure in this facility.
In its final decision, the agency dismissed allegations 5 and 7 of
appellant's complaint on the grounds that these allegations failed to
state a claim. The agency determined with regard to allegation 5 that
the matter reflects a factual assertion rather than an allegation that
appellant has been harmed. As for allegation 7, the agency noted that
the allegation is not against the agency, but rather against the OWCP.
Allegation 8 was dismissed on the grounds that it was not brought
to the attention of an EEO Counselor and it is not like or related
to allegations that were brought to the EEO Counselor's attention.
Allegations 1-4 and 6 were accepted for investigation.
On appeal, appellant contends that she attempted to make appointments
with the EEO Counselors to discuss the matter set forth in allegation 8,
but that she was informed they were too busy to see her. Appellant claims
that an EEO Counselor did not see her with regard to this matter until
October 24, 1997.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
We find that neither allegation 5 nor allegation 7 states a claim.
Allegation 5 does not refer to a specific incident, but rather the
potential consequence of appellant being placed in a non-nursing position.
Appellant's speculation on this issue does not reflect a harm or loss
suffered by appellant with regard to a term, condition, or privilege
of her employment. As for allegation 7, the requirement of OWCP that
she undergo another series of tests to secure a second opinion does not
reflect an action taken by the agency. An allegation of discrimination
with regard to an action on the part of the OWCP is not within the
purview of the EEO process. Accordingly, the agency's decision to
dismiss allegations 5 and 7 of appellant's complaint for failure to
state a claim was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion that raises a matter that has not been
brought to the attention of a Counselor and is not like or related to
a matter that has been brought to the attention of a Counselor.
The record reveals that allegation 8 concerns appellant not being
provided information related to the chemical exposure and reactions in
the work facility of other employees, patients, or visitors. We note
that several of the other allegations in the instant complaint involve
job assignments made in response to appellant's disability and working
conditions such as appellant being required to wear a respirator while
she is on duty in the hospital. We find that the issue of chemical
exposure to other people in the facility and their respective reactions
is a matter that is sufficiently like or related to the issues that
were brought to the attention of the EEO Counselor. Accordingly, the
agency's decision to dismiss allegation 8 of appellant's complaint was
improper and is REVERSED. Allegation 8 is hereby REMANDED for further
processing in accordance with the ORDER below.
CONCLUSION
The agency's decision to dismiss allegations 5 and 7 is hereby AFFIRMED.
The agency's decision to dismiss allegation 8 is hereby REVERSED.
Allegation 8 is hereby REMANDED to the agency for further processing in
accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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:
June 2, 1999
_____
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations