01a02726
07-24-2000
Judith A. Morano v. Department of the Treasury
01A02726
July 24, 2000
Judith A. Morano, )
Complainant, )
)
v. ) Appeal No. 01A02726
) Agency No. 00-3046
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing her complaint of unlawful employment
discrimination brought under 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.<1>
We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
After completing EEO counseling, complainant filed a formal complaint
alleging that she was subjected to discrimination on the bases of sex,
age, and reprisal when she was issued a counseling memorandum, dated
August 27, 1999, concerning her substandard performance and poor attitude
while on a temporary one month detail. Complainant contends that the
memorandum was unwarranted, and that the agency could not substantiate
it because it had illegally destroyed the supervisory notes upon which
the memorandum was supposedly based in violation of the Privacy Act.
In its FAD, the agency dismissed the complaint on the grounds that it
was a preliminary step to taking a personnel action. Specifically,
the agency found that the counseling memorandum was nothing more than
a preliminary review that had not been used in a personnel action.
Moreover, the agency addressed the fact that a copy of the memorandum
was maintained only by the District Counsel, complainant's supervisor.
The agency concluded that because this copy was only available to the
District Director, maintenance of the record does not constitute a
present harm.<2>
On appeal, complainant argues that the District Counsel harmed her
with the counseling memorandum by using it to reduce two provisional
performance evaluations, which he only changed after she challenged them,
and by telling her he would use it to lower her May 2000 evaluation.
Complainant avers that the counseling memorandum is more in the nature
of a punishment than a performance evaluation, which was issued to her
because of her complaints about working in the vicinity of a co-worker
with violent tendencies. She claims that the counseling memorandum could
be used in a variety of ways against her, especially in the agency's
current reorganization, noting that her present position had already
been abolished.
In response, the agency argues that its FAD should be affirmed because
the counseling memorandum is not a personnel action, and that the harms
that complainant identifies are merely speculative.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(5)) provides, in part, that the
agency shall dismiss a complaint that alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory.
Our review of the counseling memorandum reveals that it describes in
narrative form complainant's resistance and reluctance to accept the
temporary assignment. It assesses her �first phase� performance as
�marginal to substandard,� and her �second phase� as �less than fully
successful,� indicating that she lacked initiative and enthusiasm.
The memorandum is formally prepared, on the agency's official stationary,
and signed by the District Counsel. It was issued to complainant during
a discussion regarding her alleged poor attitude and performance during
the temporary assignment.
The Commission has consistently held that discussions wherein a supervisor
verbally cautions an employee that certain conduct is unacceptable and may
result in an adverse action, without more, does not render the employee
aggrieved. See Miranda v. U.S. Postal Service, EEOC Request No. 05920308
(June 11, 1992). 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. U.S. Postal Service, EEOC Appeal No. 01965363
(August 18, 1997).
Here, the counseling memorandum is formally prepared, and has both tone
and content to suggest a reprimand as opposed to a preliminary performance
evaluation (which distinguishes it from the Jackson case referenced in
the FAD), and as such we find that complainant is aggrieved. See also
Smith v. U.S. Postal Service, EEOC Appeal No. 01970713 (August 14, 1997).
We also find that because the counseling memorandum was used to lower
two provisional evaluations, which complainant had to challenge to have
revised, and because the District Counsel told her that he planned to
use it to lower her May 2000 annual evaluation, these identified harms
are not mere speculation. Instead, we find that complainant is presently
aggrieved by the District Counsel's use of the counseling memorandum.
Accordingly, we conclude that the agency's dismissal on the grounds that
the counseling memorandum was only a preliminary action 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.
ORDER (E0400)
The agency is ORDERED to process the remanded claims 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 claims 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 (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
July 24, 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.
2In reaching this decision, we note that the agency relied on Jackson
v. Central Intelligence Agency, EEOC Request No. 05931177 (June 23,
1994).