Paula J. Rodriguez, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01991489_r (E.E.O.C. Oct. 28, 1999)

01991489_r

10-28-1999

Paula J. Rodriguez, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Paula J. Rodriguez, )

Appellant, )

)

v. ) Appeal No. 01991489

) Agency No. 980710200

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

On December 7, 1998, appellant filed a timely appeal with this Commission

from a final agency decision received on November 23, 1998, pertaining

to her complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq. In her complaint, appellant alleged that she was subjected to

discrimination based on her sex (female) and in reprisal for previous

EEO activity when she was reassigned while on voluntary temporary duty

in Bosnia. In her complaint, and in her interview with an EEO counselor,

appellant alleged, inter alia, that:

Only 14 days after she left for Bosnia on April 13, 1997, her position

was placed under a male co-worker (in order to upgrade his position)

without competitive consideration, moving the position from a female

to a male supervisor; and

Upon her return from Bosnia, her realigned position no longer was

responsible for programs for which she previously had �full control,�

and that she had lost supervisory responsibilities.

The agency dismissed allegation (1) pursuant to EEOC Regulations

29 C.F.R. �1614.107(a), for failure to state a claim, and

29 C.F.R. �1614.107(b), for failure to timely contact an EEO

counselor. Specifically, the agency claimed that appellant failed to

establish that she was aggrieved, and that because an informal inquiry

had determined that appellant knew of the agency action as early as

June 1997, her June 22, 1998 initial EEO counselor contact occurred more

than forty-five (45) days from the date she learned of the realignment,

and was thus untimely. The agency failed to address allegation (2).

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. 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;

�1614.106(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).

In allegation (1), appellant alleged that her position, previously

under a female supervisor, was placed under a male co-worker in order

to upgrade the male co-worker's position. This allegation, which solely

involved the realignment of appellant's position, did not assert a harm

or loss to the terms, conditions or privileges of appellant's employment.

Consequently, we AFFIRM the dismissal of allegation (1) pursuant to 29

C.F.R. �1614.107(a).<1>

The Commission notes, however, that the agency failed to address

appellant's allegation concerning her loss of program and supervisory

responsibilities resulting from the realignment of her position. The

agency's submissions on appeal reveal that the substance of appellant's

second allegation was raised in her interview with an EEO counselor and

in her formal complaint. The Commission therefore deems the agency's

failure to address allegation (2) as tantamount to a dismissal of that

allegation without proper grounds.

Accordingly, the agency's decision to dismiss allegation (1) is AFFIRMED.

The agency's dismissal of allegation (2), by failing to address the

matters raised in that allegation, is hereby REVERSED. Allegation (2)

is REMANDED to the agency for further processing in accordance with this

decision and the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation within thirty (30) calendar

days of the date this decision becomes final. 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 (T0993)

This decision affirms the agency's final decision 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 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.

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 THIRTY (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 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 (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:

October 28, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1As allegation (1) was properly dismissed for failure to state a

claim, we need not address the agency's alternative grounds for

dismissal, i.e., for failure to timely contact an EEO counselor.