01976202
11-03-1999
Linda A. Mitchell, Appellant, v. Madeline K. Albright, Secretary, Department of State, Agency.
Linda A. Mitchell, )
Appellant, )
) Appeal No. 01976202
v. ) Agency No. 9508
) Hearing No. 100967343X
Madeline K. Albright, )
Secretary, )
Department of State, )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the basis of race (Black), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
Appellant alleges she was discriminated against when, on September 30,
1994, her supervisor, in a hostile and abusive manner, informed her
that her performance was unsatisfactory, and that she must chose one
of three options: (1) demotion; (2) resignation; or, (3) termination.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is REVERSED and REMANDED.
The record reveals that appellant, a GS-8 Secretary at the agency's
Office of the Legal Adviser, Inter-American Affairs, filed a complaint on
November 29, 1994, alleging discrimination as referenced above. At the
conclusion of the investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. �1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case of
discrimination because she failed to produce any evidence to show that
she suffered an adverse employment action as a result of the alleged
discriminatory incident.
The agency's FAD adopted the AJ's RD.
On appeal, appellant contends that the AJ erred when she held that no
adverse employment action had taken place, producing copies of: a Letter
of Reprimand, dated October 24, 1994; a Letter of Leave Restriction,
dated October 28, 1994; a Proposal to Suspend Letter, dated April 19,
1995; and a Request for Medical Questionnaire Forms, dated May 2,
1995. Her appeal also contains copies of a Warning Letter, a Proposal
to Remove Letter, and Reduction in Grade Letter, all dated in 1996.
The record reveals that appellant filed a subsequent complaint on
December 26, 1995, in which she states that her supervisor �has now
presented to me as he threatened last year� attaching a copy of a Civil
Service Employee Performance Warning (Warning), dated November 8. 1995.
This Warning gave appellant 45 days to attain a minimally successful
performance level, or risk demotion or removal.
On appeal appellant argues that not only did she receive the above
Warning, which was an adverse employment action in itself, but she was
also actually demoted to a Grade GS-6. The Commission has held that
"[w]here an individual received EEO counseling on a proposed action and
the agency ultimately carries out the proposed action, the otherwise
premature allegation merges with the effectuated action." Siegel
v. Department of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9,
1997) (citations omitted). The Commission has further held that this
merger occurs even if appellant has not filed a formal complaint on
the ultimate action. Anderson v. U.S. Postal Service, EEOC Appeal
No. 01975635 (August 21, 1998). Accordingly, we find that appellant's
instant complaint regarding the verbal threat of demotion merges with
the Warning alleged in the December 1995 complaint, all of which merges
with the actual demotion, and must be investigated by the agency as such.
Therefore, the FAD is REVERSED and we REMAND the matter to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations concerning
appellant's demotion from a GS-8 to a GS-6, in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received the remanded allegations within thirty (30) calendar days
of the date this decision becomes final. After conducting a supplemental
investigation on the remanded issues, 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 (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:
November 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations