01980896
10-08-1998
Diane E. Levasseur, Appellant, v. No. DON97-00024-005 John H. Dalton, Secretary, of the Navy, Agency.
Diane E. Levasseur, )
Appellant, )
)
v. ) Appeal No. 01980896 ) Agency
No. DON97-00024-005
John H. Dalton, )
Secretary, ) Department
of the Navy, )
Agency. )
_________________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. and the Age Discrimination in Employment Act of
1967, as amended (ADEA), 29 U.S.C. �621 et seq. The final decision was
issued on October 10, 1997. The appeal was postmarked November 7, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On August 12, 1997, appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the bases
of sex, age, and reprisal.
On October 10, 1997, the agency issued a final decision. Therein,
the agency determined that appellant's complaint was comprised of three
allegations, namely, whether appellant was subjected to discrimination
when her supervisor:
a. Called her into his office, on 20 September 1996, and told her that
she were disrupting the office.
b. Starting in later February 1997, failed to provide her with additional
work of a non-clerical nature to enable her to qualify for promotion as
compared to young white male employees . . . in other Branches in the
Logistics and Materials Division who were getting the work and being
promoted while females in the Government Furnished Materials Branch were
being assigned work that was clerical in nature.
c. Rated her Minimally Successful, level 2, on 10 July 1997.
The agency accepted allegations (b) and (c) for investigation. The agency
dismissed allegation (a) for failure to state a claim.
On appeal, appellant argues that allegation (a) is directly linked to
the matter raised in allegation (c). Appellant also submits a copy of
an e-mail message transmitted from appellant's Supervisor to a Second
Level Supervisor relating to the matter addressed in allegation (a).
In response, the agency argues that no disciplinary action was taken
against appellant as a result of the matter raised in allegation (a), and
that this allegation was properly dismissed for failure to state a claim.
The record in this case contains a copy of the e-mail message dated
September 25, 1996, from appellant's Supervisor to a Second Level
Supervisor. Therein, appellant's Supervisor made the following statement:
The purpose of this e-mail is to advise you and to make a record of my
conversation with [appellant and a co-worker] of 20 Sep 96. This record
is relative to complaints from several co-workers regarding conversations
between [appellant and the co-worker] held in each others work spaces.
Both [appellant and the co-worker] were advised that conversations
that are degrading to co-workers and management were inappropriate
in the workplace and that such conversations, especially considering
their frequency and duration had become a disruption to the workplace.
They were advised to discontinue such conversations.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination 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 40 years of age) and the Rehabilitation Act (discrimination
on the basis of disability) shall be processed in accordance with Part
1614 of the EEOC Regulations. In addition, the U.S. Supreme Court has
stated that an employee is aggrieved when some personal loss or harm
has been suffered with respect to a term, condition, or privilege of
employment. See Trafficante v. Metropolitan Life Insurance Co., 409
U.S. 205 (1972).
In allegation (a), appellant alleged that her Supervisor called her
into his office on September 20, 1996, and informed her that she was
disrupting the office. The agency argues that appellant was not the
subject of disciplinary action as a result of the discussion with her
Supervisor. We note, however, that the matter raised in allegation
(a) was memorialized in an e-mail message from appellant's Supervisor
to a Second Level Supervisor, on September 25, 1996; and that the
Supervisor stated in the e-mail message that its purpose was to "make
a record" of the Supervisor's conversation with appellant on September
20, 1996. Given the facts of this case, we find that allegation (a)
addresses an incident that has been recorded and could have a negative
impact on appellant's employment future. We therefore determine that
appellant is aggrieved and that she has stated a claim relating to the
issue addressed in allegation (a). Accordingly, the agency's decision
to dismiss allegation (a) was improper and is REVERSED. Allegation (a)
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 allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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:
Oct. 8, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations