01994937
05-19-2000
Deborah L. Diggs, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Deborah L. Diggs, )
Complainant, )
)
v. ) Appeal No. 01994937
) Agency No. 02-99-017
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
____________________________________)
DECISION
On June 4, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) regarding her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission
accepts the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
Complainant contacted the EEO office regarding her claims of
discrimination and harassment due to a hostile work environment based
on reprisal. Informal efforts to resolve her concerns were unsuccessful.
Accordingly, on February 19, 1999, complainant filed a formal complaint
claiming that:
1. She was subjected to a hostile work environment on December 10,
1998, when agency officials failed to provide adequate supervision
resulting in an physical altercation with a co-worker, and receipt
of a reprimand after she reported the altercation; and,
2. She was discriminated against when her PMAS rating was not discussed
with her before she received it on December 18, 1998, due to
a lack of supervision.
In its FAD, the agency dismissed the complaint for failure to state
a claim. Regarding claim 1, the agency found that the letter from
the supervisor to complainant advising her of the need to improve her
conduct was not a �reprimand,� and that therefore she was not aggrieved
by this action. Regarding claim 2, the agency found that complainant
was not harmed when she did not engage in a discussion about her rating
prior to its issuance, and so was not aggrieved by this action.
On appeal, complainant argues that the agency intentionally failed to
provide adequate supervision over her office, consisting of a staff of
three, knowing that it would very probably result in altercations among
them because she frequently functioned as a �whistle blower� against
the other two, reporting schedule irregularities. Complainant contends
that the agency deliberately placed her in this situation as a means of
retaliating against her for filing prior EEO complaints, and that the
reprimand was also issued for this reason. With respect to claim 2,
complainant contends that she should have been permitted to discuss
her accomplishments prior to receiving her rating, claiming that the
agency's failure to provide her with this opportunity was motivated by
retaliation.
In its response, the agency argues that complainant was not intentionally
exposed to a �hostile environment� and that the agency acted properly when
the altercation was reported, taking steps to prevent a reoccurrence.
Moreover, as also noted in its FAD, the agency again avers that
complainant did not receive a reprimand, only a memorandum cautioning
that discipline would result if the infraction was repeated, and also
that complainant suffered no harm when not provided with an opportunity
to discuss her rating.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint 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, .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).
Regarding claim 2, we agree with the agency's determination that
complainant was not harmed in a term, condition, or privilege of
employment when not provided with an opportunity to discuss her rating
before its issuance. We note that complainant does not contest the
rating itself as being improper, or that it would have been higher had
she been given an opportunity to discuss it before she received it,
thereby failing to identify any harm within the meaning of the law and
regulation cited above. Accordingly, we AFFIRM the agency's decision
to dismiss claim 2.
Regarding claim 1, we find that complainant is actually stating two
separate incidents of reprisal. We construe one incident as a claim
that the �reprimand� was issued as reprisal, and the other incident as
a claim that the agency intentionally allowed complainant to remain
in a work environment filled with on-going interpersonal strife,
compounded with inadequate supervision to increase the risk of conflict.
Our review of the memorandum at issue discloses that it is in the nature
of an admonishment regarding the altercation, but includes a clear a
warning that disciplinary action will ensue if the conduct continues.
The memorandum is formally prepared, on the agency's official stationary,
and signed by the Area Director of Area 2. It was apparently issued
to complainant during a discussion with her supervisor regarding the
altercation referenced in the memorandum.
This Commission has consistently held that discussions wherein a
supervisor verbally cautions an employee that certain conduct is
unacceptable and may result in disciplinary action, without more, does
not render the employee aggrieved. See Miranda v. USPS, EEOC Request
No. 05920308 (June 11, 1992); Devine v. USPS, EEOC Request Nos. 05910268,
05910269 and 05910270 (April 4, 1991). However, when a written record
is created memorializing this type of discussion, the Commission has
held that such complaints do state a claim. See Acey v. USPS, EEOC
Appeal No. 01965363 (August 18, 1997); Smith v. USPS, EEOC Appeal
No. 01970713 (August 14, 1997). Therefore, in the present case, we
find that complainant does state a claim because a written memorandum
was created memorializing the discussion at issue. Accordingly,
we conclude that the agency's dismissal was improper, and we REVERSE
this determination and REMAND the complaint to the agency for further
processing in accordance with this decision and the ORDER below..
Regarding her contention that the lack of supervision was intentional,
we note that the agency improperly addressed this matter on the �merits�
by arguing that it followed its harassment policy, rather than assessing
whether complainant was aggrieved by this alleged action. After careful
review, and based on the legal principles stated above, we find that
complainant has identified a �harm� by alleging that the agency forced
her to work in a highly adversarial environment, made even more dangerous
by a lack of supervision, and that this alleged action is sufficient
to render her an aggrieved employee. Also, because she has alleged
that this action was based on reprisal for prior EEO activity, she has
raised a claim within the purview of the EEOC regulations. Accordingly,
the agency's decision to dismiss this claim was improper, and is hereby
REVERSED. This portion of the complaint is REMANDED to the agency for
further processing in accordance with this decision and the ORDER below.
ORDER (E0400)
The agency is ORDERED to process the remanded claim (claim 1) in
accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall
acknowledge to the complainant that it has received the remanded claim
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant 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 complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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
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 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 (T0400)
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:
May 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.