Marie Mamedalin, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionAug 30, 2000
01a05219 (E.E.O.C. Aug. 30, 2000)

01a05219

08-30-2000

Marie Mamedalin, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Marie Mamedalin v. Department of Commerce

01A05219

August 30, 2000

.

Marie Mamedalin,

Complainant,

v.

William M. Daley,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A05219

Agency No. 00-63-01277D

DECISION

The instant matter is being processed pursuant to a Memorandum of

Understanding (MOU) entered into by the agency, the Bureau of the Census,

and the United States Equal Employment Opportunity Commission.<1> The

MOU was entered into in order to process complaints arising from the

2000 Decennial Census more effectively and efficiently.

Pursuant to the MOU, individuals file their complaints directly with

the Commission. The Commission, through its Washington, D.C. Field

Office, then conducts an early assessment of complaints and neutral

evaluation of cases. The Washington, D.C. Field Office of the Commission

establishes a record of the complaint by obtaining an affidavit from the

complainant and by contacting an agency official to obtain the necessary

information on the complaint. Based on the record established by the

Washington, D.C. Field Office, the Washington, D.C. Field Office will:

(1) notify the agency that the individual has elected not to file a

formal complaint; (2) issue a decision dismissing the complaint and

notify the complainant of his or her right to appeal the decision to

the Office of Federal Operations; (3) conduct settlement negotiations;

or (4) notify the complainant that the complaint has been accepted and

forward the complaint to the agency for further investigation.

On June 30, 2000, the Commission's Washington, D.C. Field Office dismissed

the instant complaint for failure to state a claim. In its decision, the

Field Office defined the complaint as alleging discrimination on the bases

of sex (female), color (dark-skinned), and age (over 40) when complainant

was improperly paid. The Field Office found that complainant suffered no

harm because she was fully compensated. The Field Office also noted that

the delay in payment was due to a �payroll error,� not discrimination.

The record includes a copy of complainant's formal complaint, dated

May 31, 2000. In this document, complainant alleged discrimination on

the bases of race (Caucasian), color, sex, national origin (Arab and

Italian-American), age, and reprisal. She attached a �statement of

facts� outlining her claims, which included:

Complainant's supervisor failed to assist her with �recalcitrant�

members of the public;

The supervisor informed complainant �no one in their right mind would

work with you;�

The supervisor refused to sign complainant's time sheet for �Assignment

Areas� where she failed to �clear cases;�

The agency required complainant to under-report her time; and

The supervisor constructively discharged complainant by failing to give

her any new assignments.

EEOC Regulations allow complaints to be dismissed for failure to state

a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) . To state a claim,

complainant must allege harm to a term, condition, or privilege of her

employment on the basis of race, color, religion, sex, national origin,

age, disabling condition, or reprisal for protected activity. See Diaz

v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994).

The Commission finds that the Field Office improperly defined

complainant's formal complaint. Complainant raised several claims as

listed above. When viewed together, these incidents state a cognizable

claim. See Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997) (requiring that all incidents of harassment be construed

together in a light most favorable to complainant).

CONCLUSION

Accordingly, the Field Office's decision to dismiss the complaint is

REVERSED, and the claims, as defined above, are REMANDED to the Field

Office for further processing in accordance with this decision, the

Memorandum of Understanding, and applicable regulations.

ORDER

The Washington, D.C. Field Office shall, pursuant to the Memorandum

of Understanding referenced in this decision, conduct settlement

negotiations on the instant complaint or notify complainant that the

complaint has been accepted and forward the complaint to the agency for

further investigation.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 30, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.