01983070
03-04-1999
Teresita Beverage, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency
Teresita Beverage v. Department of the Army
01983070
March 4, 1999
Teresita Beverage, )
Appellant, )
) Appeal No. 01983070
v. ) Agency No. BODVF09802I0130
)
Louis Caldera, )
Secretary, )
Department of the Army, )
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
allegation (3) of appellant's complaint for failing to cooperate.
BACKGROUND
Appellant filed a formal complaint of discrimination dated January 15,
1998, based on national origin (Hispanic), Color (brown), sex (female),
and reprisal for filing an informal complaint when: allegation (1) she
was non-selected for promotion to the position of Director of Community
and Family Activities, Fort Dix; allegation (2) she was misled by the
Command who promised to convert her position from non-appropriated
fund to appropriated fund; and allegation (3) she was harassed because
of discrimination based on her national origin (Hispanic), her gender
(female), her color (brown), and in reprisal for filing an informal
complaint of discrimination.
The EEO Counselor's Report (undated) indicates appellant first contacted
the EEO office on October 21, 1997. In the report, appellant stated
the discriminatory events were ongoing since June 1997, with the most
recent incident occurring September 25, 1997. Appellant specified
eleven incidents alleging discrimination, harassment and reprisal.
The allegations listed incidents where appellant was subjected to abusive
and humiliating treatment in front of her co-workers, where during staff
meetings from February 1997 through October 1997, a manager (Manager 1)
used unwarranted body language and tone of voice when addressing her,
where management excluded her from the planning and decision-making
process in her area of responsibility, where the Director (Manager
2) placed unrealistic demands for completion of on-going projects on
appellant as a prerequisite to her attending a conference in September
1997, and where on or about October 6, 1997, appellant was singled
out when she received a letter of counseling for late suspense while
employees having as many and more late suspenses did not receive a letter
of counseling.
The agency contacted appellant by letter dated February 3, 1998,
requesting clarification and specificity in allegation (3). The agency
requested that appellant specify when and what harassing and reprisal
actions were taken against her. The letter informed appellant that
any reprisal actions should have taken place after October 21, 1997,
when appellant initially contacted the EEO Counselor. The letter also
advised appellant that if she failed to respond to the request within
15 days of receipt of the letter, or if her response did not address
the request for specificity and clarification, the complaint may be
dismissed for failure to cooperate.
In response to the agency's February 3, 1998, request appellant faxed
a memorandum dated February 4, 1998, describing a September 25, 1997,
staff meeting attended by appellant and managers 1 and 2. The memorandum
recited statements made by the appellant and the managers concerning
both the position for which appellant applied and was not selected,
and the decision not to convert appellant's present position from
non-appropriated to appropriated funds.
The agency issued a final agency decision dated March 3, 1998, dismissing
allegation (3) for failure to cooperate. The agency stated appellant
had not responded to its request for relevant information concerning
harassment and reprisal actions.
In her appeal, dated March 12, 1998, appellant contends her February
4, 1998, memorandum responded to the agency's request for information.
The memorandum provided information about specific events occurring on
a specific date. The agency contends appellant's February 4, 1998,
memorandum contains no specific information to clarify or amplify
allegation (3), but merely establishes that a meeting occurred on that
date, and that there was considerable misunderstanding as to a position
being filled.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss a complaint or a portion of a complaint where the agency has
provided the complainant with a written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of the receipt,
or the response does not address the agency's request, provided the
request included a notice of the proposed dismissal.
The Commission finds appellant responded to the agency's request in the
memorandum dated February 4, 1998. The memorandum recited statements made
by appellant and managers 1 and 2 at a September 25, 1997, staff meeting.
In addition, in the Counselor's Report, appellant provided the agency with
several specific dates and events of harassment including manager 1's use
of unwarranted body language and tone of voice directed toward appellant
at staff meetings. While the Commission recognizes that allegation
(3) may still need additional clarification, we find that appellant made
a good faith attempt to address the agency's request for clarification
of allegation (3) by providing a specific date, September 25, 1997, and
specific event, a staff meeting, in response to the agency's request.
The Commission finds that the agency has failed to show that appellant
did not cooperate with regard to her allegation of harassment.
The appellant's claim of unlawful discrimination on the basis of reprisal
need not depend on whether retaliatory events occurred after contact
with an EEO Counselor. Title VII anti-retaliation provisions make it
unlawful to discriminate against an employee who participates in the
EEO process or opposes, explicitly or implicitly, discrimination or any
practice made unlawful under the employment discrimination statutes.
Pletten v. Department of the Army, EEOC Request No. 05940256 (February
24, 1995). The Courts and the Commission both have observed that the
participation clause should be interpreted as providing exceptionally
broad protection to individuals participating in any manner in the EEO
process. Section 915.003, EEOC Compliance Manual, Commerce Clearing
House, and cases cited therein.
It is well settled that a violation of the retaliation provision can be
found whether or not the challenged practice ultimately is found to be
unlawful.<1> An employee is protected against reprisal where s/he has
a reasonable and good faith belief the practices are discriminatory,
and opposes those practices.
The Commission finds the agency improperly dismissed allegation (3) of
appellant's complaint for failing to provide information on retaliation
occurring after October 21, 1997. Appellant's contention that reprisal
is part of the basis for the alleged discriminatory practices can be based
on actions other than contact with an EEO Counselor. Appellant has, in
good faith, provided the agency with sufficiently specific information
of discrimination and harassment based on reprisal, national origin,
color, and sex for the agency to investigate allegation (3).
CONCLUSION
The agency's decision to dismiss appellant's complaint is REVERSED and
REMANDED to the agency for processing as ORDERED 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 (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
March 4, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations
1 This standard has been adopted by every circuit that has considered
the issue. See Little v. United Technologies, 103 F 3d 956, 960 (11th
Cir. 1997), and Trent v. Valley Electric Association, Inc., 41 F.3d 524,
526 (9th Cir. 1994).