01A04880_01A12526_r
01-08-2002
Ixtla Ccihuatl, Complainant, v. John M. Bernal, U.S. Commissioner, International Boundary & Water Commission, Agency.
Ixtla Ccihuatl v. International Boundary and Water Commission
01A04880 and 01A12526
January 8, 2002
.
Ixtla Ccihuatl,
Complainant,
v.
John M. Bernal,
U.S. Commissioner,
International Boundary & Water Commission,
Agency.
Appeal Nos. 01A04880 and 01A12526
Agency Nos. 00-11 and 01-02
DECISION
The instant matters are appeals from two different agency decisions
concerning two different complaints. Upon review, the Commission finds
that the agency's decision dismissing complainant's complaint in Agency
Number 00-11 was proper, in part, and improper, in part, and, the agency's
decision dismissing complainant's complaint in Agency No. 01-02 was
proper, but for reasons other than those cited by the agency in its
decision. In her complaints dated May 31, 2000 and January 10, 2001,
complainant claims that she was discriminated against on the bases of race
(Hispanic), national origin (Mestiza), sex (female), age (over 40), and
in retaliation for prior EEO activity. Pursuant to 29 C.F.R. � 1614.606,
the Commission is consolidating complainant's appeals.
Agency No. 00-11
In her complaint dated May 31, 2000, complainant claimed that she was
discriminated against when:
(1A) As a result of a letter dated December 28, 1994, complainant was
�black listed� and suspects that similar letters were sent to places
where she applied for jobs;
(1B) As a result of a letter sent and featured in a newspaper in December
1999, complainant was a target for retaliation;
(1C) From January 1995 through December 7, 1998, complainant was told
to use a restroom shared by males and females and was not told that
the women's restroom
was available to her. Additionally, the distance of the women's restroom
from complainant's place of work was too inconvenient for complainant;
(1D) Complainant was informed that personnel working in the warehouse
were not to go to the administrative building, and, although packages
were delivered to staff members as part of complainant's job, complainant
did so with fear of management officials there;
(1E) In or around 1994, the Employee Assistance Program (EAP) sent
complainant a letter discussing complainant and her work situation
without complainant's knowledge and consent, thereby �smearing�
complainant's reputation;
(1F) By memorandum dated February 28, 2000, complainant was accused of
falsifying her time sheet;
(2A) Complainant was given a driving test but she was not allowed to
operate vehicles available to other warehouse and shop personnel;
(2B) Complainant was not allowed to operate a forklift, although she
was a certified forklift operator;
(3A) Complainant requested and was denied training in non-clerical
positions;
(3B) In March 2000, complainant's name was not included on a memorandum
regarding administrative support training that included the names of
all female clerical employees from all projects;
(3C) Complainant received disciplinary letters �on a regular basis for
offenses real or fabricated by management,� but such letters were not
given to other employees;
(3D) Employees, especially White employees, were allowed to �vent their
anger� on complainant and management did not intervene;
(3E) In 1997, complainant was disciplined for taking �too long� of a
break, while a White male employee who was on a break with complainant was
not disciplined; (4) Management took steps to ensure that complainant
was not considered for any other job, and tried to force complainant to
leave her job by discrimination and harassment;
(5) One male employee was promoted to Grade 8 and one White male was
advised that with minor outside training he would be promoted from WG-08
to WG-10. Complainant claims that because of her national origin and sex,
she would not be offered such promotional considerations;
(6) �Unprecedented attacks in the guise of a safety review were made
part of [complainant's] work day;�
�Sexist and racist treatment is practiced by agency officials and
condoned by the Commissioner;�
�The events orchestrated by management during the months of February
and March 2000 have affected [complainant's] health;� and
On or about March 8, 2000, complainant was charged with AWOL and then
suspended while another employee was not disciplined.
Untimely EEO Counselor Contact
In its decision dated June 27, 2000, the agency dismissed claims 1A, 1E,
3A, and 3E for untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). The agency dismissed claim 1F because complainant
received �no counseling� on the claim and because complainant did
not state when this matter occurred. EEOC Regulation 29 C.F.R. �
1614.105(a)(1) requires complaints of discrimination to be brought
to the attention of the EEO Counselor within forty-five (45) days of
the date of the claimed discriminatory matter, or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission's regulations, however, provide that the
time limit will be extended when the complainant shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1614.105(a)(2). Complainant's initial contact with an
EEO Counselor occurred on March 21, 2000.
Regarding claim 1A, on appeal, complainant maintains that her EEO
Counselor contact was timely due to �continuing status by recent events
dating 02/2000 through 05/2000.� The Commission finds that complainant
has failed to show that any incident at issue in claim 1A occurred within
45 days of the date she contacted an EEO Counselor.
The record shows that the claim of discrimination described in claim 1E
occurred in 1994. On appeal complainant claims that �retaliation was an
almost daily occurrence,� but fails to provide the dates on which this
retaliatory action occurred. The Commission also finds this explanation
inadequate to show that complainant contacted an EEO Counselor within the
forty-five (45) day limitation period regarding the incident in claim 1E.
Additionally, the Commission finds that complainant did not contact an EEO
Counselor within the forty-five (45) day limitation period for claim 3E.
The record shows that the claim of discrimination described in claim
3E occurred in or around 1997; therefore, EEO Counselor contact did not
occur within the limitation period for claim 3E.
Regarding claim 3A, on appeal, complainant asserts that she was not sure
until the year 2000 that management would deny complainant all training
opportunities. A review of the record indicates that complainant received
a memorandum dated April 6, 2000, denying her a training opportunity.
Although this memorandum was dated after complainant's initial EEO
Counselor contact on March 21, 2000, an issue like or related to
complainant's claim of denial of training was raised with the EEO
Counselor and was included in her complaint. The same supervisor was
involved with both claims of denial of training. Therefore, we find
that claim 3A was timely raised with the EEO Counselor.
The agency contends that complainant never received counseling on
claim 1F, and, that complainant did not state when this event happened.
On appeal, complainant responds that complainant was never asked when
she was accused of falsifying her time sheet by an agency official.
The record shows that complainant raised with the EEO Counselor an
issue regarding leave regulations, which is like or related to the
matter raised in claim 1F. Additionally, complainant clearly raised the
matter of being accused of falsifying her time sheet in her complaint.
Therefore, the only issue is whether complainant timely contacted an EEO
Counselor regarding this claim. In her complaint, complainant asserts
that by memorandum dated February 28, 2000, complainant was falsely
accused of falsifying her time sheet. Complainant contacted the EEO
Counselor on March 21, 2000, within forty-five (45) days of the date
that the claimed discriminatory matter occurred; therefore, complainant
timely raised this issue with the EEO Counselor.
The Commission finds that the agency properly dismissed claims 1A,
1E, and 3E for untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2), but improperly dismissed claims 3A and 1F.
Failure to State a Claim
The agency dismissed claims 1B, 1C, 1D, 2A, 2B, 3B, 3D, and 5 for
failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency failed to specifically address the reasons for the dismissal
of claims 4 and 7 in its decision, instead, referring to other claims.
Upon review, the Commission finds that complainant failed to identify
how the incidents identified in claims 1B, 1C, 1D, 2A, 2B, 3B, 3D,
4, and 7 adversely affected a term, condition, or privilege of her
employment. Additionally, complainant's claims, even if proven to be
true, do not indicate that complainant has been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of
her employment. Therefore, we find that the agency properly dismissed
claims 1B, 1C, 1D, 2A, 2B, 3B, 3D, 4, and 7 for failure to state a claim.
The Commission finds that claim 5 was improperly dismissed for failure
to state a claim. The agency's alleged failure to offer complainant
promotional considerations rendered her aggrieved.
Matters Raised in Negotiated Grievance Procedure
The agency dismissed claims 3C, 6, 8, and 9 pursuant to 29 C.F.R. �
1614.107(a)(4) because these claims had been raised in a negotiated
grievance procedure. EEOC Regulation 29 C.F.R. � 1614.301(a) states that
when a person is employed by an agency subject to 5 U.S.C. � 7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure,
a person wishing to file a complaint or a grievance on a matter of
alleged employment discrimination must elect to raise the matter under
either Part 1614 or the negotiated grievance procedure, but not both.
The agency failed to include a copy of the collective bargaining
agreement in the record. Without this evidence, the Commission cannot
determine if complainant was able to raise claims of discrimination in
the negotiated grievance procedure. The Commission cannot find that the
agency's dismissal of claims 3C, 6, 8, and 9, pursuant to 29 C.F.R. �
1614.107(a)(4), was proper.
Agency No. 01-02
In her complaint dated January 10, 2001, complainant claimed that she was
discriminated against on or about October 23, 2000, when the Assistant
Project Manager and Project Manager �sabotaged� her time and attendance
work. The Commission finds that the complaint was properly dismissed
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant has not shown how she was aggrieved by the instant matter.
Additionally, complainant's claim, even if proven to be true, and even if
combined with the claims raised in agency number 00-11, do not indicate
that complainant has been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of her employment.
The agency's decision dismissing claims 1A, 1B, 1C, 1D, 1E, 2A, 2B,
3B, 3D, 3E, 4, and 7, of complainant's May 31, 2000 complaint, Agency
Number 00-11, is AFFIRMED. The agency's decision dismissing claims
1F, 3A, 3C, 5, 6, 8, and 9 of complainant's May 31, 2000 complaint
is REVERSED. Claims 1F, 3A, 3C, 5, 6, 8, and 9 are remanded to the
agency for further processing in accordance with this decision and the
Order below. The agency's decision to dismiss complainant's January 10,
2001 complaint, Agency Number 01-02, 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
January 8, 2002
__________________
Date