01A44080_r
11-03-2004
Nitza Persinger, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Education Activity), Agency.
Nitza Persinger v. Department of Defense (Education Activity)
01A44080
November 3, 2004
.
Nitza Persinger,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Education Activity),
Agency.
Appeal No. 01A44080
Agency No. EU-FY04-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 29, 2004, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of race (Hispanic) when:
On September 5, 2003, complainant learned that the Case Study Committee
(CSC) Chairperson, Person A, discontinued the clerk's position to
which complainant had been performing collateral duties along with her
positions as GS-102-04, Educational Aide (Special Education), and there
was no longer a need for her to occupy the office space and/or use the
equipment that had been available for the duties of the clerk position;
On September 2, 2003, complainant learned that another Special Education
Aid was given additional hours to work and complainant was not;
On August 19, 2003, complainant was informed that she was to report to
school on August 25, 2003. She alleges that she had assumed that her
reporting date would be September 2, 2003, the same date for students,
and because she was not given ample notification of her reporting date,
she was unable to make appropriate childcare arrangements and she missed
the Special Education Aids training that was held on August 27, 2003,
eight days after she had become aware of the reporting date;
In May 2003, complainant became aware that the agency had a policy where
a teacher can be hired and granted one year to complete the certification
process. Complainant claimed that sometime between April and May 2003,
[Person B], Principal of Robinson Barracks Elementary School, told
her that a teaching position for the 2003/2004 school year required
a certified teacher, and that if she were not certified, she was not
qualified for the position.
The agency dismissed issues (1), (2) and (3) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
With regard to issue (1), the agency noted that complainant had been
performing the clerk duties as collateral work and that she received
no additional pay for performing these duties, although she received
additional experience in performing the duties. The agency stated that
because these were collateral duties, there was no decrease in pay when
the duties were removed. The agency noted that when the clerk duties
were removed, complainant was assigned as a learning impaired aid in the
mornings and as a preschool aid in the afternoons, working the full forty
hours per pay period performing the duties of an Educational Aid, as she
was hired to do. The agency stated although it was no longer necessary
for her to occupy the office space or use the equipment of the clerk
position, she was given a desk in the preschool room where she was an aid.
The agency noted that the clerk position for the CSC was abolished and was
not filled by a person of a different national origin than complainant.
With regard to issue (2), the agency noted that Person B confirmed that
the Bavarian School District had provided the school with an additional
five hours per week (10 per pay period) of employment for special
education aids. Person B acknowledged that he offered another educational
aid extra hours because that employee was working twenty-five hours, which
was less than the forty hours per pay period that complainant was working.
With regard to issue (3), the agency stated that management has no control
as to whether or not complainant's personal responsibilities were met
outside of the school in order for complainant to have reported to work
on August 25, 2003. The agency stated that complainant did not show that
she was disciplined or reprimanded for not attending the training or for
not reporting to school on the day in question. The agency stated that
complainant has not shown that she suffered any disciplinary action or
adverse employment action, or that management denied her the right to
attend the training offered on August 27, 2003.
With regard to issue (4), the agency dismissed this issue pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The agency stated that even if complainant learned
of the policy on the last day of May 2003, she failed to contact an
EEO Counselor within forty-five days of May 31, 2003. The agency noted
that complainant did not initiate EEO contact until September 11, 2003.
Additionally, the agency noted that complainant did not identify a
vacancy announcement to which she sought employment or that an actual
vacancy existed.
Upon review, we find that the agency improperly dismissed issue (1)
for failure to state a claim. The Commission has previously held that
a collateral duty assignment is a condition or benefit of employment.
Paul v. Department of Defense, EEOC Appeal No. 01924516 (November 24,
1992). For that reason, the Commission finds that the alleged removal
of complainant's collateral duties as a clerk for the CSC was a personal
loss which rendered complainant aggrieved.
With regard to issue (2), we find that in alleging that she was not
given additional hours to work while another aide received additional
hours, complainant has stated a cognizable harm. We find that the
agency's reason for offering the additional hours to the other aide,
inappropriately addresses the merits of this claim in a procedural
decision.
With regard to issue (3), we find that this issue was properly dismissed
for failure to state a claim. Specifically, complainant failed to show
that the agency's late reporting notice resulted in a harm, or loss to
a term, condition or privilege of employment for which there is a remedy.
With regard to issue (4), we find that this issue was properly dismissed
for untimely EEO Counselor contact. We note that complainant mentions
that she was interested in a position as a Learning Impaired aide in
2002 but was told that she was not eligible because she did not have
her certificate. Additionally, complainant states that in April or May
2003, she approached the principal about becoming a full time teacher
and expressed an interest in applying for a vacancy the school would
have in 2003-2004 for a preschool teacher. She states that Person B
told her that the position would require a teacher to be certified.
Complainant states that in May 2003, she learned that the agency has a
policy by which they can hire a teacher who is not certified, as long
as the teacher completes the certification process prior to the end of
the school year for which he/she is hired. The record reveals that the
latest date of discrimination with regard to issue (4) was May 31, 2003;
however, complainant failed to contact an EEO Counselor until September
11, 2003, which is beyond the applicable limitations period.
Accordingly, the agency's decision to dismiss issues (1) and (2)
is REVERSED and these issues are REMANDED to the agency for further
processing in accordance with the Order below. The agency's decision
to dismiss issues (3) and (4) is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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 (M0701)
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), 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
November 3, 2004
__________________
Date