Linda A. Mitchell, Appellant,v.Madeline K. Albright, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionNov 3, 1999
01976202 (E.E.O.C. Nov. 3, 1999)

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