Charlotte Bergh, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01992835 (E.E.O.C. Nov. 8, 1999)

01992835

11-08-1999

Charlotte Bergh, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Charlotte Bergh, )

Appellant, )

)

v. ) Appeal No. 01992835

) Agency No. TD 99-4046

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

On February 15, 1999, appellant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on January 14,

1999, pertaining to a complaint of unlawful employment discrimination

pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq. and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The Commission accepts

appellant's appeal in accordance with EEOC No. 960, as amended.<1>

The record reflects that on July 29, 1998, appellant initiated contact

with an EEO Counselor. During the counseling period, appellant alleged

that she was being treated differently in comparison to the Asian

employees within her office.

On November 24, 1998 appellant filed a formal compliant, alleging that

she was the victim of unlawful employment discrimination on

the basis of race, gender, national origin and retaliation. The complaint

was comprised of the following allegations in which appellant underwent

counseling for.<2>

1. Appellant received an unfair performance appraisal dated August

7, 1998;

2. Appellant was ordered not to contact the General Accounting Office

during the course of her audits;

3. Appellant's manager failed to provide out briefs on her audits;

4.Appellant's manager required detailed explanations for her absence on

October 8, 1998; and

5. Appellant's manager disputed the amount of time she used to confer

with her EEO Counselor and requested that appellant provide her with

twenty-four hour notice before she spends time with her counselor.

The agency, on January 14, 1999, issued a final decision (FAD). The FAD

shows the grounds the agency cited to support the dismissal of issues four

and five of the instant complaint. The agency dismissed the allegations

four and five for failure to state a claim, because the agency found that

appellant was not an �aggrieved employee�. Furthermore, the agency has

dismissed appellant's basis of retaliation because the agency claims that

appellant has not engaged in a protected activity. It is upon this

decision that appellant appeals.

On appeal, appellant, through her attorney, argues that she has engaged

a protected activity. Specifically, appellant asserts that on July

29, 1998 when she contacted the EEO Counselor, she engaged a protected

activity.

With regard to reprisal discrimination, the Commission has stated that:

"the anti-reprisal provision of Title VII protects those who participate

in the EEO process and also those who oppose discriminatory employment

practices. Participation occurs when an employee has made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding or hearing. Participation also occurs when an employee files

a labor grievance, if the employee raised issues of unlawful employment

discrimination in the grievance.... A variety of activities has been

found to constitute opposition .... Because the enforcement of Title VII

depends on the willingness of employees to oppose unlawful employment

practices or policies, courts have interpreted section 704(a) of Title

VII as intending to provide 'exceptionally broad protection to those who

oppose such practices'...." Whipple v. Department of Veterans Affairs,

EEOC Request No. 05910784 (February 21, 1992) (citations omitted).

EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and

class complaints of employment discrimination and retaliation 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 forty years of age),

the Rehabilitation Act (discrimination on the basis of disability), or

the Equal Pay Act (sex-based wage discrimination) shall be processed

in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)

provides that no person shall be subject to retaliation for opposing any

practice made unlawful by Title VII of the Civil Rights Act (Title VII)

(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or

the Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in

any stage of administrative or judicial proceedings under these statutes.

In the present case, appellant has clearly engaged a protected activity

when she contacted an EEO Counselor on July 29, 1998, in an effort to

combat discrimination within Department of the Treasury. Accordingly,

the agency's final decision dismissing appellant's basis of reprisal

was improper and is therefore REVERSED.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). 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 (April 21, 1994).

The only proper questions in determining whether an allegation is

within the purview of the EEO process are: (1) Whether the complainant

is an aggrieved employee and (2) Whether he has alleged employment

discrimination covered by the EEO statutes. An employee is �aggrieved�

if he has suffered direct and personal deprivation at the hands of the

employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133

(March 2, 1990). Here, appellant alleged that her supervisor required

her to provide �detailed� explanations for her absence on October 8, 1998

and she required appellant to provide her twenty-four hours advance notice

before she meets with her EEO Counselor and that she disputed the time she

spent with her EEO Counselor on November 3, 1998. Appellant's allegations

are sufficient to render her an �aggrieved employee�. Furthermore,

since appellant has alleged that the adverse action was based on reprisal,

race, age and national origin, appellant has raised allegations within

the purview of the EEOC regulations.

Accordingly, the agency's decision to dismiss appellant's complaint

for failure to state a claim was improper and is REVERSED. Appellant's

complaint is REMANDED to the agency for further processing in accordance

with this decision and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations and basis in

accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to

the appellant that it has received the remanded allegations and basis

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 (R0993)

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. 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. 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 (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:

November 8, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1Since the agency did not supply a copy of a legible certified

mail return receipt or any other material capable of establishing

the date appellant received the agency's final decision, the

Commission presumes that appellant's appeal was filed within

thirty (30) days of receipt of the agency's final decision. See,

29 C.F.R. �1614.402.

2According to the record, appellant, asserts in her compliant that

she has suffered discrimination from her supervisor on the basis of

retaliation. This basis was not initially brought to the attention of

the EEO Counselor, however, the Counselor was informed of the basis and

the issues prior to filing of the formal complaint. Appellant asserts

that the reprisals are in response to the initial contact with the EEO

counselor. In addition, appellant, through her attorney, submitted

a letter, at the request of the agency, to clarify the issues within

the complaint.