01983048
02-17-1999
Mona Lisa Dogans, Appellant, v. Andrew Cuomo, Secretary, U.S. Department of Housing and Urban Development, Agency
Mona Lisa Dogans v. U.S. Department of Housing and Urban Development
01983048
February 17, 1999
Mona Lisa Dogans, )
Appellant, )
) Appeal No. 01983048
v. ) Agency No. FW-98-04
)
Andrew Cuomo, )
Secretary, )
U.S. Department of Housing )
and Urban Development, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e
et seq. The appeal is accepted by the Commission in accordance with
the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
appellant's complaint as not actionable under Title VII of the Civil
Rights Act of 1964.
BACKGROUND
Appellant filed a formal complaint on September 22, 1997, alleging
discrimination based on race (Black), color (dark complexion), sex
(female), physical disability (severe acute sinus and allergy) and
reprisal for previous EEO activities when, on September 4, 1997, her
supervisor (the Supervisor) appraised appellant on a mid-term progress
review at a lower rating than appellant believed she earned.
Appellant, a black female, states in her complaint she filed EEOC
complaints in 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996 and 1997
against the Supervisor, a white female, and another manager, a white male.
Appellant states both managers had input into her appraisal. In 1990,
appellant named the Supervisor in a Prohibited Personnel Practice
complaint she filed with the Office of Special Counsel.
Appellant states she is harassed, singled out, and mistreated by the
Supervisor on a daily basis. Appellant received a rating of Highly
Satisfactory on a midpoint progress review. She contends her work level
and performance deserve a rating of Outstanding. Appellant states,
of the seven black and four white employees in her work unit under the
Supervisor, only three employees, all white, received an Outstanding
rating.
The agency issued a final decision (FAD) dated February 13, 1998, in which
it dismissed appellant's complaint, pursuant to 29 C.F.R. 1614.107(e)
wherein an agency shall dismiss a complaint that alleges that a proposal
to take personnel action, or other preliminary step to taking personnel
action, is discriminatory. The agency stated, "Progress reviews are not
actionable under Title VII of the Civil Rights Act of 1964, as amended,
because they do not create a direct and personal deprivation, which
renders an individual aggrieved."
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R �1614.107(e) provides that an agency shall
dismiss a complaint that alleges "that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory." The Section by Section Analysis that accompanied
issuance of 29 C.F.R. �1614 states in part:
We intend [1614.107(e)] to require dismissal of complaints that allege
discrimination in any preliminary steps that do not, without further
action, affect the person; for example progress reviews or improvement
periods that are not a part of any official file on the employee.
If the individual alleges, however, that the preliminary step was taken
for the purpose of harassing the individual for a prohibited reason,
the complaint cannot be dismissed under this section because it has
already affected the employee.
57 Fed. Reg. 12643 (April 10, 1992).
In Rodriguez-Soto v. Department of the Army, EEOC Request No. 05960646
(Oct. 8, 1998), appellant alleged the agency placed him on a Performance
Improvement Plan (PIP) and denied him meaningful assistance to improve
during the PIP as part of a pattern of discrimination based on national
origin. The Commission found, since appellant alleged in essence the
agency's actions were taken for the purpose of harassment, he had already
been affected by the agency's actions and stated a claim. See Noone
v. Central Intelligence Agency, EEOC request No. 05940422 (Jan. 23,
1995).
In the instant case, the Commission finds appellant alleges the progress
review was issued for the purpose of harassing her for a prohibited
reason, and, therefore, states a claim. Appellant alleges she is harassed
on a daily basis and the progress review was issued in retaliation for
her numerous EEO complaints against the Supervisor due to her race,
color, sex, and physical disability.
CONCLUSIONS
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint 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 herein.
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 (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:
February 17, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations