Michelle A. Schaefer-Laughrun, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.

Equal Employment Opportunity CommissionJun 2, 1999
01984205 (E.E.O.C. Jun. 2, 1999)

01984205

06-02-1999

Michelle A. Schaefer-Laughrun, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.


Michelle A. Schaefer-Laughrun v. Department of Veterans Affairs

01984205

June 2, 1999

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