01A21430_r
06-10-2003
Annie Baez v. Department of the Army
01A21430
June 10, 2003
.
Annie Baez,
Complainant,
v.
R. L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A21430
Agency No. BKEKFO0112B0280
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 5, 2001, 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.
In the December 5, 2001 decision, the agency defined the complaint
as alleging:
[Complainant] alleged that management treated [her] differently because
of [her] race (Hispanic) and reprised against [her] because of [her]
efforts to resolve [her] complaint through the mediation process.
The agency dismissed the issue pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The agency found that complainant's
employment status was not effected by comments or recommendations made
by management or the mediation which was conducted on October 4, 2001,
in which no resolution was reached.
On appeal, complainant alleged that the following list of events,
which occurred at the Reynolds Army Community Hospital Nursing Center,
constituted harassment and differential treatment against her for a
period of 3 years:
(1) In July 1998, the Supervisor asked complainant to leave the job
because she was not wanted at the Nursing Center;
(2) In October 1999, the Supervisor singled complainant out as the one
to leave if the Nursing Care Center loses a nursing position;
(3) In April/June 2000, complainant requested time to be allocated for
Quality Improvement and was initially denied, but then time was given
to another nurse;
(4) In November 2000, the Supervisor attempted to give complainant a
lower evaluation;
(5) In August 2001, the Supervisor purposely ignored complainant's
seniority and assigned a contract nurse for supervisory duties against
hospital policy.
The Commission finds that the agency incorrectly defined complainant's
complaint. The record contains a copy of complainant's formal complaint
dated November 26, 2001, in which complainant referenced issues (2)
and (5) as stated above. Complainant stated that she was subjected
to continuous disparate treatment and reprisal for prior protected
activity. The Commission finds that the five issues listed are in
need of clarification. Furthermore, complainant may be alleging more
incidents of harassment. There is no indication that the agency attempted
to clarify the complaint. Moreover, because the complaint appears to be
(at least in part) a claim of harassment, the agency should reconsider the
complaint as a whole to determine whether it states a claim of harassment.
Therefore, the Commission shall remand the complaint so that the agency
may contact complainant to clarify the complaint and then either issue
a letter accepting the redefined complaint or issue a new decision
dismissing the redefined complaint.
Accordingly, the agency's decision dismissing complainant's complaint
is REVERSED and the complaint is REMANDED for further processing in
accordance with the Order below.
ORDER
The agency shall contact complainant to clarify the issues that she is
raising in her complaint (including the dates of the alleged incidents).
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall either issue a letter to complainant accepting
the complaint for investigation or issue a new decision dismissing the
complaint. The letter accepting the complaint or the decision dismissing
the complaint shall clearly list the claim(s) in the complaint. A copy
of the agency's letter accepting the complaint for investigation or the
new decision dismissing the complaint must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
June 10, 2003
__________________
Date