Deborah L. Diggs, Complainant,v.Aida Alvarez, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
01994937 (E.E.O.C. May. 19, 2000)

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.