01997033
07-21-2000
Vicki M. Solomon, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Vicki M. Solomon v. Department of Veterans Affairs
01997033
July 21, 2000
.
Vicki M. Solomon,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997033
Agency No. 99-3800
DECISION
Vicki M. Solomon (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated August 10, 1999 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> Complainant alleged that she was subjected
to discrimination and harassment on the bases of sex (female), age
(51 at relevant time), disability (not recorded) and reprisal (prior
EEO activity) when the agency failed to notify and advise her of her
right to file an EEO complaint after the dismissal of her Merit Systems
Protection Board (MSPB) appeal.
The agency dismissed the complaint pursuant to EEOC Regulation 64
Fed. Reg. 37, 644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(1)), noting that it failed to state a
claim because it did not allege a personal loss or harm with regard to
a term or condition of employment. The agency noted that it would refer
the allegation to the agency official with oversight responsibility over
the complaint process for review and appropriate action.
On appeal, complainant contends that the agency's failure to notify
her in a timely fashion of her right to file an EEO complaint is part
of a pattern of discrimination and harassment. She notes that she was
harmed in that the MSPB appeal dealt with gaining the full benefit of her
medical retirement and the agency's action prevented that from occurring.
The agency requests that its FAD be affirmed.
EEOC Regulation 64 Fed. Reg. 37,644, 36,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.302(b)), states that if a
person files a mixed case appeal with the MSPB and the MSPB dismisses
that appeal for jurisdictional reasons, the agency shall promptly notify
the individual in writing of the right to contact an EEO counselor
within 45 days of receipt of the notice and to file an EEO complaint.
However, a failure on the agency's part to abide by this regulation
cannot be remedied by the filing of a separate EEO complaint. Such a
complaint is analogous to a �spin-off� complaint, as it essentially
alleges dissatisfaction with the processing of a separate complaint,
and is subject to dismissal under 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(8)).
The agency therefore correctly dismissed the complaint in the case at
hand.
The appropriate method for redressing the agency's alleged failure is
to bring it to the attention of the agency official responsible for
the complaint process. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110) at 5-14 (as revised,
November 9, 1999). This official must add a record of complainant's
concerns and the agency's actions to resolve the concerns to the complaint
file maintained in the underlying complaint. See EEO-MD-110, at 5-26.
We advise complainant that if the agency fails to informally resolve her
concerns, she may present them to the EEOC either when the underlying
complaint is under the jurisdiction of an EEOC Administrative Judge,
or, if she does not request a hearing on the underlying complaint, to
the EEOC Office of Federal Operations on appeal. See id. We note that
it is not clear from the record whether complainant filed a complaint in
regard to those issues dismissed by the MSPB for jurisdictional reasons,
i.e., whether �an underlying complaint� exists. Assuming, however,
that complainant has not filed a complaint on these issues and that her
allegation concerning the agency's failure to notify her of her right to
do so is true, we advise the agency to notify complainant of her right
to contact an EEO Counselor and file an EEO complaint, as required by
29 C.F.R. � 1614.302(b).
Accordingly, the agency's dismissal of this complaint was proper and is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 21, 2000
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.