Annie Baez, Complainant,v.R. L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 10, 2003
01A21430_r (E.E.O.C. Jun. 10, 2003)

01A21430_r

06-10-2003

Annie Baez, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.


Annie Baez v. Department of the Army

01A21430

June 10, 2003

.

Annie Baez,

Complainant,

v.

R. L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A21430

Agency No. BKEKFO0112B0280

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated December 5, 2001, 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 the December 5, 2001 decision, the agency defined the complaint

as alleging:

[Complainant] alleged that management treated [her] differently because

of [her] race (Hispanic) and reprised against [her] because of [her]

efforts to resolve [her] complaint through the mediation process.

The agency dismissed the issue pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. The agency found that complainant's

employment status was not effected by comments or recommendations made

by management or the mediation which was conducted on October 4, 2001,

in which no resolution was reached.

On appeal, complainant alleged that the following list of events,

which occurred at the Reynolds Army Community Hospital Nursing Center,

constituted harassment and differential treatment against her for a

period of 3 years:

(1) In July 1998, the Supervisor asked complainant to leave the job

because she was not wanted at the Nursing Center;

(2) In October 1999, the Supervisor singled complainant out as the one

to leave if the Nursing Care Center loses a nursing position;

(3) In April/June 2000, complainant requested time to be allocated for

Quality Improvement and was initially denied, but then time was given

to another nurse;

(4) In November 2000, the Supervisor attempted to give complainant a

lower evaluation;

(5) In August 2001, the Supervisor purposely ignored complainant's

seniority and assigned a contract nurse for supervisory duties against

hospital policy.

The Commission finds that the agency incorrectly defined complainant's

complaint. The record contains a copy of complainant's formal complaint

dated November 26, 2001, in which complainant referenced issues (2)

and (5) as stated above. Complainant stated that she was subjected

to continuous disparate treatment and reprisal for prior protected

activity. The Commission finds that the five issues listed are in

need of clarification. Furthermore, complainant may be alleging more

incidents of harassment. There is no indication that the agency attempted

to clarify the complaint. Moreover, because the complaint appears to be

(at least in part) a claim of harassment, the agency should reconsider the

complaint as a whole to determine whether it states a claim of harassment.

Therefore, the Commission shall remand the complaint so that the agency

may contact complainant to clarify the complaint and then either issue

a letter accepting the redefined complaint or issue a new decision

dismissing the redefined complaint.

Accordingly, the agency's decision dismissing complainant's complaint

is REVERSED and the complaint is REMANDED for further processing in

accordance with the Order below.

ORDER

The agency shall contact complainant to clarify the issues that she is

raising in her complaint (including the dates of the alleged incidents).

Within thirty (30) calendar days of the date this decision becomes

final, the agency shall either issue a letter to complainant accepting

the complaint for investigation or issue a new decision dismissing the

complaint. The letter accepting the complaint or the decision dismissing

the complaint shall clearly list the claim(s) in the complaint. A copy

of the agency's letter accepting the complaint for investigation or the

new decision dismissing the complaint must be sent to the Compliance

Officer as referenced herein.

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 (R0900)

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

June 10, 2003

__________________

Date