01994492
11-05-1999
Tyra R. Alexander, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Tyra R. Alexander v. Department of Justice
01994492
November 5, 1999
Tyra R. Alexander, )
Appellant, )
)
v. )
) Appeal No. 01994492
Janet Reno, ) Agency No. F-98-5152
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On May 3, 1999, appellant filed a timely appeal with this Commission from
a final agency decision (FAD), dated April 8, 1999, dismissing three
allegations from her complaint. The Commission accepts the appeal in
accordance with EEOC Order No. 960, as amended.
Appellant contacted the EEO office regarding allegations of discrimination
based on sex and reprisal. Informal efforts to resolve appellant's
concerns were unsuccessful. Accordingly, on February 25, 1998, appellant
filed a formal complaint.
The agency defined the allegations as follows:
On November 10, 1997, appellant noticed the radio had been removed from
her bureau assigned vehicle without being advised;
On December 1 and 3, 1997 the doctor's office of your client was
contacted by the Supervisory Special Resident Agent (SSRA) of the Santa
Maria Resident Office;
On December 4, 1997, appellant was informed that she was placed on
absent without leave status, beginning December 1, 1997, until a note
was received from her doctor;
On December 8, 1997, appellant was denied annual leave;
On December 12, 1997, appellant was provided a letter dated October 28,
1997 from the Sheriff's Department stating that she be removed from an
unlawful flight to avoid prosecution case and that it be reassigned,
although she did not learn of the case assignment until December 12,
1997;
On January 28, 1998, appellant was notified that she was going to be
transferred and would receive notification within four to six weeks
regarding the transfer destination;
On December 15, 1997, the SSRA made the comments "as long as you get
in my face, I'm going to get in your face," and that he would respond
to assist her if, "I hear you scream or I hear the alarm, whichever
comes first";
On December 15, 1997, appellant was required to write a memorandum
regarding the documents found in her bureau assigned vehicle during a
search of the vehicle on November 7, 1997;
On December 23, 1997, appellant noticed that all of the investigative
files that were assigned to her were on the SSRA's desk, noting that
it was not time for a file review;
On January 7, 1997, appellant was told that she had to park her bureau
assigned vehicle in the front parking lot;
On January 7, 1998, appellant was denied her request to work a Saturday
shift in order to take a regular day off on January 8, 1998;
On January 9, 1998 appellant was asked to account for her working
activities Monday through Friday of that particular work week, explaining
what she completed each day, and what she planned to do Monday through
Friday of the following week; and,
On January 28, 1998, appellant was provided the results of her
psychological fitness-for-duty test, which management officials were
aware of since January 14, 1998.
The agency issued a FAD dismissing allegations 7, 11, and 13.
Specifically, the agency dismissed allegation 7 (SSRA comments)
pursuant to 29 C.F.R. �1614.107(a), noting that remarks or comments
unaccompanied by an adverse action fail to state a claim. Allegation 11
(request for Saturday shift) was dismissed for raising a matter that had
not been brought to the attention of an EEO Counselor. The FAD stated
that allegation 13 (results of psychological test) had been addressed
in a prior complaint (Case No. F-97-5078), and therefore dismissed it
pursuant to 29 C.F.R. �1614.107(a). Moreover, the FAD indicated that
allegations 1 - 6, 8, 9, 10, and 12 were previously accepted as issues
for investigation.
Allegation 7
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).
The agency dismissed allegation 7 on the grounds that appellant
failed to state a claim. We find, however, that a fair reading of
appellant's complaint presents a claim of harassment by her supervisor.
When confronted with claims involving multiple allegations, the agency
should not ignore the "pattern aspect" of a complainant's claims and
define the issues in a piecemeal manner, as it apparently did here.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 12, 1993). While standing alone, allegation 7 may not state a
claim. However, when considered with the accepted allegations, we find
it is part of appellant's broader claim of harassment. Therefore, the
agency's decision to dismiss allegation 7 was improper and is REVERSED.
Allegation 11
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
Based on a review of the record, the Commission finds that appellant did
not raise the issue in allegation 11 with the EEO Counselor. Further,
requesting to work a Saturday shift is not "like or related" to the
allegations that were discussed during counseling. Therefore, the
agency's dismissal of allegation 11 was proper and is AFFIRMED.
Allegation 13
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The agency contends that allegation 13 was addressed in Complaint No.
F-97-5078. However, the record does not support the agency's assertion.
Neither a copy of the prior complaint, nor any other supporting
documentation, is contained in the record. Clearly, it is the burden
of the agency to have evidence or proof to support its final decision.
See Marshall v. Department of the Navy, EEOC Request No. 05910685
(September 6, 1991). Therefore, the Commission finds that the agency's
dismissal of allegation 13 is not supported by the record and is hereby
REVERSED.
Accordingly, the agency's decision dismissing allegation 11 is AFFIRMED.
The agency's decision dismissing allegations 7 and 13 is REVERSED.
Allegations 7 and 13 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 allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 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. 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:
11/05/1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations