0120103292
02-23-2012
Lois K. Garrity, Complainant, v. Robert C. Tapella, Public Printer, United States Government Printing Office, Agency.
Lois K. Garrity,
Complainant,
v.
Robert C. Tapella,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120103292
Agency No. 1019
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated June 28, 2010, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), 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. Upon review, the Commission finds
that Complainant's complaint was improperly dismissed pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Content Acquisition Specialist, Grade PG-12, at the Agency’s
Content Acquisition Section in Washington, DC. On March 18, 2010,
Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of sex (female), age (71), and in
reprisal for prior protected EEO activity when her grade was lowered
from PG-12 to PG-11.
On June 28, 2010, the Agency issued a final decision dismissing the
complaint pursuant to C.F.R. § 1614.107(a)(1) for failure to state
a claim. The Agency reasoned that Complainant was not aggrieved by the
change in grade because she continued to receive a PG-12 level salary.
From the final agency decision, Complainant brings the instant appeal.
ANALYSIS AND FINDINGS
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). When the complainant does not allege
she is aggrieved within the meaning of the regulations, the agency
shall dismiss the complaint for failure to state a claim pursuant to 29
C.F.R. § 1614.107(a)(1).
Here, the nature of Complainant’s claim is not clearly expressed in the
complaint but when the allegations of the complaint, the nature of the
relief sought and the EEO Counselor’s report are considered together,
it is plain that Complainant is complaining about being downgraded.1 The
EEO Counselor’s report states explicitly: “[Complainant] is alleging
discrimination on the basis of reprisal for her previous EEO activity
due to a change to a lower grade.” EEO Counselor’s Report at 2.
The Agency contends that Complainant is not aggrieved because, despite
having received a downgrade from PG-12 to PG-11, her salary has not
been reduced. Complainant contends that having her position downgraded
is sufficient to render her aggrieved, regardless of any change in
salary that may or may not have resulted. We need not address that
issue because we have determined that the Agency’s final decision
improperly addressed the merits of the complaint. The level of the
salary Complainant receives is irrelevant to the procedural issue of
whether she has stated a viable claim under Title VII, the ADEA and
the 29 C.F.R. Part 1614 regulations. See Osborne v. Department of the
Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States
Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli
v. United States Postal Service, EEOC Request No. 05910642 (August 15,
1991). Complainant has alleged an injury or harm to a term, condition,
or privilege of employment for which there is a remedy. See Diaz v. Dep't
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
CONCLUSION
For the foregoing reasons, the Agency's final decision dismissing
Complainant's complaint is REVERSED. The complaint is hereby REMANDED
to the Agency for further processing in accordance with this decision
and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (ongoing harassment)
in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC
20013. 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 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 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
77960, Washington, DC 20013. 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 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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 23, 2012
__________________
Date
1 The contents of the EEO Counselor’s report may be referred to in
determining the gravamen of the complaint. EEO Management Directive 110,
Chapter 2, V. (A)(2) provides:
At the initial interview, the counselor must determine what action(s)
the agency has taken or is taking that causes the aggrieved person to
believe (s)he is a victim of discrimination. This first step is essential
to proceeding with the inquiry and resolution attempt and, if resolution
is not achieved, essential to a focused investigation and hearing.
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0120103292
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103292