Clarissa J. Hirner, Complainant,v.Norman Y. Mineta, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionOct 31, 2000
01a05768 (E.E.O.C. Oct. 31, 2000)

01a05768

10-31-2000

Clarissa J. Hirner, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.


Clarissa J. Hirner v. Department of Commerce

01A05768

October 31, 2000

.

Clarissa J. Hirner,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A05768

Agency No. 00-63-00951D

DECISION

The instant matter is being processed pursuant to a Memorandum of

Understanding (MOU) entered into by the agency, the Bureau of the Census,

and the United States Equal Employment Opportunity Commission.<1> The

MOU was entered into in order to process complaints arising from the

2000 Decennial Census more effectively and efficiently.

Pursuant to the MOU, individuals file their complaints directly with

the Commission. The Commission, through its Washington, D.C. Field

Office, then conducts an early assessment of complaints and neutral

evaluation of cases. The Washington, D.C. Field Office of the Commission

establishes a record of the complaint by obtaining an affidavit from the

complainant and by contacting an agency official to obtain the necessary

information on the complaint. Based on the record established by the

Washington, D.C. Field Office, the Washington, D.C. Field Office will:

(1) notify the agency that the individual has elected not to file a

formal complaint; (2) issue a decision dismissing the complaint and

notify the complainant of his or her right to appeal the decision to

the Office of Federal Operations; (3) conduct settlement negotiations;

or (4) notify the complainant that the complaint has been accepted and

forward the complaint to the agency for further investigation.

By decision dated August 2, 2000, the Commission's Washington, D.C. Field

Office dismissed the instant complaint �as based on 29 C.F.R. � 1614.107.�

The complaint was defined as alleging wrongful termination on the bases

of religion (Catholic), physical disability (mitrao valve prolapse), and

retaliation. In its dismissal, the Field office found that complainant

established no prima facie case of disability or religious discrimination,

and had engaged in no prior protected activity as required for retaliation

claims. The Field Office explained that �working out of the chain of

command� was not adequate grounds for a claim of retaliation. The Field

Office noted that complainant was terminated for failing to manage her

operations well, making excessively long trips, failing to complete her

other work, and failing to request (or use) any overtime to complete

her work.

On appeal, complainant disputes the agency's articulated reasons for her

termination. She also claims that her supervisor and co-workers berated

her a number of times prior to her termination, and made inappropriate

remarks about her religion and disability. Complainant enclosed a

calendar of notes regarding overtime requests, and included a copy of

letters requesting payment for the overtime she worked.

Although the Field Office failed to specify the grounds for its dismissal,

the Commission interprets its analysis as a dismissal for failure

to state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,

complainant must allege present harm inflicted on the basis of race, sex,

religion, national origin, age, disability, or prior protected activity.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994).

The Field Office improperly addressed the merits of complainant's claims

in its procedural dismissal. Whether complainant established a prima

facie case is irrelevant to the procedural issue of whether she stated

a cognizable claim. The Commission finds that complainant raised more

than merely her termination -- complainant alleged harm from a pattern of

harassment from her supervisor and co-workers culminating in termination.

To the extent she claims these actions were taken because of her religion

and physical disability, she has stated a claim.

Complainant also contends that the agency acted in retaliation for

her working outside of the chain-of-command. EEOC Regulations prohibit

retaliation against an individual 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)), the Age Discrimination

in Employment Act (29 U.S.C. � 621 et seq.), the Rehabilitation Act

(29 U.S.C. � 791 et seq.), or for participating in any stage of

administrative or judicial proceedings under these statutes. See 29

C.F.R. � 1614.101(b). Complainant has not engaged in any of these

prior protected activities, and therefore, fails to state a claim of

retaliation.

CONCLUSION

Accordingly, the dismissal of the basis of retaliation is AFFIRMED.

The dismissal of her other claims is REVERSED, and the claims, as defined

herein, are REMANDED for further investigation.

ORDER

As provided in the Memorandum of Understanding, the Washington Field

Office shall conduct settlement negotiations and, if unsuccessful,

forward the files to the agency for investigation. The agency shall

complete its investigation within 180 days upon receipt of the file.

At the conclusion of the investigation, the agency must forward a

copy of the investigation to complainant, and provide her rights to a

final agency decision, or a hearing with an EEOC Administrative Judge.

The agency must provide the Compliance Officer with a copy of its cover

letter sending the investigation and notice of rights to complainant

as indicated herein. If the complaint has been settled or otherwise

closed within the 180 day time frame, then the agency must provide the

Compliance Officer with notice of such.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(Supp. V 1993). 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 (M0900)

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 (T0900)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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, Director

Office of Federal Operations

October 31, 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 29 C.F.R. Part 1614 in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.