Sirelda Alvarado-Embade, Complainant,v.Aida Alvarez, Administrator, Small Business Administration,) Agency.

Equal Employment Opportunity CommissionFeb 17, 2000
01981808 (E.E.O.C. Feb. 17, 2000)

01981808

02-17-2000

Sirelda Alvarado-Embade, Complainant, v. Aida Alvarez, Administrator, Small Business Administration,) Agency.


Sirelda Alvarado-Embade v. Small Business Administration

01981808

February 17, 2000

Sirelda Alvarado-Embade, )

Complainant, )

)

v. ) Appeal No. 01981808

) Agency No. 05-97-609

Aida Alvarez, )

Administrator, )

Small Business Administration,)

Agency. )

______________________________)

DECISION

The Commission finds that the agency erred in its December 2, 1997

decision dismissing a portion of Complainant's complaint for untimely

EEO counselor contact, failure to state a claim and because it raised

a matter already raised in a grievance procedure, and alleging that a

proposed action is discriminatory, pursuant to 64 Fed. Reg. 37,644, 37656

(1999) (to be codified and hereinafter referred to as EEOC Regulation

29 C.F.R. � � � �1614.107(a) (1), (2), (4) and (5).<1>

The record shows that Complainant sought EEO counseling on January 13,

1997, alleging that she had been discriminated against on the bases of

sex, disability and reprisal. Complainant filed a formal complaint

of discrimination consisting of nine claims. The agency accepted claims

(4), (5), (6) and (8). Although direct appeals of decisions partially

dismissing a complaint are no longer permissible under the regulations

revised on November 9, 1999, the agency has informed the Commission that

the accepted claims were the subject of an agency decision on February

24, 1999. Therefore, we shall consider the dismissed claims that are the

subject of the instant appeal because there are apparently no remaining

claims from the instant complaint pending anywhere in the administrative

EEO process.

The remaining claims of Complainant's complaint are the following:

whether Complainant was discriminated against on the bases of sex,

mental disability and reprisal when:

(1) she was transferred within one month to two different divisions on

or about February 5 and March 12, 1996;

(2) she was issued a written reprimand on May 7, 1996, related to an

incident in which she reported the alleged misuse of her government

parking space on April 12, 1996, to her Administrative Officer and

District Director;

(3) she was not interviewed by the District Director when her

recommendation for a promotion to the GS-1101-11 grade was made nor was

she congratulated nor informed of the approval or the effective date

for her promotion (these omissions took place sometime prior to October

27, 1996);

(7) a co-worker asked other employees about Complainant's whereabouts

during a period when this co-worker was not Complainant's supervisor

or Acting Team Leader;

(9) she received a letter from the Deputy District Director dated May 9,

1997, proposing to remove her from her position as Business Opportunity

Specialist, GS-1101-11.

Claims (1) - (3) and (7) were dismissed on the grounds of untimely EEO

counselor contact. Claims (3) and (7) were also dismissed for failure

to state a claim. Claim (2) was dismissed on the grounds that it raised

a matter already raised in a grievance. Claim (9) was dismissed on the

grounds that it raised a proposal to take a personnel action.

On appeal, Complainant contends that as an agency employee for over

18 years, with no prior conflicts or problems with the agency, she

did not realize that she was being discriminated against until she

lived through the events raised in all the claims of her complaint.<2>

Regarding claim (9), Complainant states that the letter of May 9, 1997,

must be considered as an additional element of the whole discriminatory

atmosphere that encompassed [her] final months at the [agency]" and

that "[A]ll these sporadic situations that were constantly arising,

every time with more frequency, constitute the complete discrimination

scenario . . . until she was finally terminated."

Concerning claims (1) - (3) and (7), we find that they were improperly

dismissed by the agency. The Commission applies a "reasonable suspicion"

standard to the triggering date for determining the timeliness of the

contact with an EEO counselor. Cochran v. United States Postal Service,

EEOC Request No. 05920399 (June 18, 1992). Under this standard,

the time period for contacting an EEO counselor is triggered when

the complainant should reasonably suspect discrimination, but before

all the facts that would support a charge of discrimination may have

become apparent. Id.; Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).

Complainant's receipt of a $900.00 performance award in December 1996,

is indicative of Complainant's assertion that she did not suspect

unlawful employment discrimination until some time thereafter, i.e.,

when she contacted an EEO Counselor in January 1997.

Moreover, the agency also dismissed claims (3) and (7) for failure to

state a claim. We disagree. A review of the dismissed claims persuades

the Commission that they should have been accepted for investigation

because, when considered together and treated as true, these claims are

sufficient to state a claim either of disparate treatment or a hostile

or abusive work environment. See Cobb v. Department of the Treasury,

EEOC Request No. 05979977 (March 13, 1997).<3> Accordingly, claims

(1), (3) and (7) were improperly dismissed by the agency and are hereby

REMANDED to the agency.

Regarding claim (2), the record shows that the agency dismissed this claim

on the grounds that it had been raised in a prior grievance. Aside from

the agency's statement, no independent evidence of said grievance has

been provided to the Commission. Complainant claims that said claim

was not part of the grievance. Based on Complainant's arguments, we are

able to determine that a grievance was filed. However, without a copy

of said documents, we are unable to make a determination concerning the

claims raised in said grievance. Accordingly, claim (2) was improperly

dismissed by the agency and is hereby REMANDED to the agency.

Finally, claim (9) was dismissed on the grounds that it raised a proposal

to take a personnel action. We disagree. Complainant claims on appeal

that she was terminated from her position. The Commission has held

that when a complaint is filed on a proposed action and the agency

subsequently proceeds with the action, the action is considered to

have merged with the proposal. Charles v. Department of the Treasury,

EEOC Request No. 05910190 (February 25, 1991). Accordingly, claim (9)

was improperly dismissed and is hereby REMANDED to the agency.

The Commission hereby REVERSES the FAD's dismissal of claims (1), (2),

(3), (7) and (9) of Complainant's complaint for untimely EEO counselor

contact, failure to state a claim and for raising a matter already raised

in a grievance. Claims (1), (2), (3), (7) and (9) are hereby REMANDED

for further processing consistent with this decision and applicable

regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 an

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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

February 17, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

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 EQUAL EMPLOYMENT ASSISTANT

1 On 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.

2 The record shows that Complainant was granted a $900.00 performance

award in December 1996.

3 In this case the Commission advised that (1) the ultimate merit of

the claims (whether they are true/whether discrimination has occurred)

may not be considered; and, (2) the complaint should not be dismissed

for failure to state a claim unless it appears beyond doubt that the

complainant can prove no set of facts in support of the claim which

would entitle the complainant to relief.