01962575
11-13-1998
Marjorie M. Demaree, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Marjorie M. Demaree v. Small Business Administration
01962575
November 13, 1998
Marjorie M. Demaree, )
Appellant, )
)
v. ) Appeal No. 01962575
) Agency No. 07-94-437
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
_______________________________________)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from the final agency decision concerning
her equal employment opportunity (EEO) complaint, which alleged
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging discrimination based on sex
(female) and age (67) when her working conditions were allegedly made
intolerable forcing her to retire (constructive discharge) on June 30,
1994, because of the following:
(1) As of April 1992, appellant's secretarial position was downgraded
and her duties were diluted to clerical tasks without merit or reason;
(2) In April 1992, appellant was detailed to the Office of Administration
(OA) for 120 days which was extended to May 1993 (after she returned
from sick leave); and
(3) In May 1993, she was positioned at a desk in the Minority Small
Business (MSB) Division area to assist the Assistant District Director.
Following the agency's investigation of the complaint, the agency informed
appellant that she could request a hearing before an EEOC administrative
judge (AJ), or request a final agency decision (FAD) based on the existing
record. Appellant did not request a hearing. Therefore, the agency issued
a FAD based on the merits of the complaint finding no discrimination.
The record reveals that appellant is a career employee. A removal of a
career employee is generally appealable to the Merit Systems Protection
Board (MSPB), in accordance with 5 C.F.R. section 1201.3(a)(2).
Appellant's complaint essentially alleges a constructive discharge. An
agency has an obligation to inform every employee who is the subject of
an action that is appealable to the MSPB and who has either orally or in
writing raised the issue of discrimination during the processing of the
action of the right to file either a mixed case complaint with the agency
or to file a mixed case appeal with the MSPB.
Further, EEOC Regulation 29 C.F.R. � 1614.302(d)(3), as amended , 61
FR 17576, April 22, 1996, provides that when a complainant elects to
proceed initially through the EEO process rather than with the MSPB,
and is dissatisfied with the agency's final decision on the mixed case
complaint, she may appeal the matter to the MSPB (not EEOC) within 30
days of receipt of the agency's final decision, or may file a civil
action pursuant to 29 C.F.R.� 1614.301.
Based on review of the record, there is no evidence that the agency
provided appropriate appeal rights at any stage of the processing of this
complaint. As a result, this case is not properly before the Commission.
For the reasons stated above, we VACATE and REMAND the agency's final
decision issued herein.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new final agency decision with appropriate appeal
rights to the MSPB rather than to the Commission in accordance with EEOC
Regulation 29 C.F.R. � 1614.302(d)(3). The agency shall send a copy of
the reissued final decision to the Compliance Officer listed 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� (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 (R0993)
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. 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.
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:
Nov 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations