01980449
05-28-1999
Veronica W. Aikens, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Veronica W. Aikens v. Department of the Treasury
01980449
May 28, 1999
Veronica W. Aikens, )
Appellant, )
)
v. ) Appeal No. 01980449
) Agency No. 97-1315
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a 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. �2000e et seq. The final agency decision was received by
appellant on September 27, 1997. The appeal was postmarked October 13,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint.
BACKGROUND
Appellant contacted an EEO counselor on June 3, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when (1) she was assigned to work on an
operating system for which she had not been trained; (2) she was assigned
exclusively to work on a project rather than having the responsibilities
allocated between appellant and another employee and (3) her supervisor
counseled appellant on her leave usage, documented said usage and proposed
to issue her a "leave letter." Informal efforts to resolve appellant's
concerns were unsuccessful. Accordingly, on July 16, 1997, appellant
filed a formal complaint alleging that she was the victim of unlawful
employment discrimination on the bases of race (black), sex (female),
and reprisal (prior EEO activity).
On September 24, 1997, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim and for alleging that
a proposal to take a personnel action, is discriminatory. Specifically,
with respect to allegations (1) and (2), the FAD determined that appellant
had failed to demonstrate that she had suffered any harm with respect to a
term, condition or privilege of employment. The FAD dismissed allegation
(3) of appellant's complaint pursuant to 29 C.F.R. �1614.107(e) on the
grounds that appellant was challenging as discriminatory, the agency's
proposal to take action concerning appellant's leave usage.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is at
least 40 years of age) and the Rehabilitation Act (discrimination on the
basis of disability) shall be processed in accordance with Part 1614 of
the EEOC Regulations.
To establish standing as an "aggrieved employee" within the context of 29
C.F.R. �1614.103, appellant must allege, first of all, that she has been
injured in fact. Hacket v. McGuire Bros., 445 F.2d 447 (3rd Cir. 1971).
Specifically, appellant must allege some direct harm which affects a term,
condition, or privilege of employment. See Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998). The only proper
questions in determining whether an allegation is within the purview of
the EEO process are whether the complainant is an aggrieved employee
and whether she has alleged employment discrimination covered by the
EEO statutes. An employee is "aggrieved" if she has suffered direct
and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In allegation (1) of the instant complaint, appellant alleges that the
agency improperly assigned her to work in an area for which she had
received no training. The agency asserts that training programs for the
specific operating system were made available to appellant but appellant
failed to attend. According to the agency, on May 16, 1997 appellant was
notified of the initial training program which was scheduled for May 19,
1997; however, appellant failed to attend. The agency also states that
additional training was scheduled for June 3, 1997 and June 20, 1997.
Appellant was again notified of the training and again failed to attend.
Upon review, the Commission determines that the agency has improperly
addressed the merits of the complaint in a procedural decision. She has
alleged facts sufficient to state a claim of discrimination. The agency's
dismissal of allegation (1) of appellant's complaint is hereby REVERSED.
In allegation (2) appellant alleges that her manager engaged in
discriminatory conduct when he assigned appellant exclusively to work on
a project rather than allocating the responsibility between appellant and
another employee. Appellant alleges further that it would take three
days or more to complete the assignment. The record indicates that
appellant was given at least three weeks to complete the assignment.
Appellant also alleges that because she had to perform her other duties
in addition to completing the assignment, it was unfair of her manager
to assign the task to appellant exclusively. The Commission is not
persuaded by appellant's assertions. Rather, we determine that the
instant matter involved an isolated work assignment which did not cause
appellant to suffer any personal harm or deprivation. We find that
allegation (2) of appellant's complaint fails to state a claim pursuant
to EEOC Regulations. The agency's decision with respect to allegation
(2) is hereby AFFIRMED.
In allegation (3) of appellant's complaint she alleges that she was
counseled about her leave usage, that her manager improperly documented
her leave usage and proposed to issue appellant a "leave letter." The
record indicates that on May 15, 1997 appellant's manager met with her
and discussed appellant's leave usage. Documentation of record indicates
that during the meeting appellant was advised that she had three weeks
to improve her leave. The record indicates further that appellant
met again with her manager on June 13, 1997 about her leave usage.
Appellant was advised that her leave had not improved and that she had
four weeks to improve her leave record. If after four weeks, appellant's
leave usage had not improved, it was proposed that appellant would be
issued a "leave letter". At the conclusion of the meeting on June 13,
1997, appellant was given a copy of a sheet tracking appellant's leave.
EEOC Regulation 29 C.F.R. �1614.107(e) requires agencies to dismiss a
complaint or portion of a complaint alleging that a proposal to taking
a personnel action is discriminatory. The intent of the Regulation
is to require dismissal of complaints that allege discrimination in
any preliminary steps which do not, without further action, affect the
complainant. However, the language in the Preamble to the Part 1614 EEOC
Regulations provides that complaints involving proposed actions cannot
be dismissed under 29 C.F.R. �1614.107(e) if an individual alleges that
the action was taken for the purpose of harassing the individual for a
prohibited reason. See Analysis of Section 107(e) of 29 C.F.R. �1614,
57 Fed. Reg. at 1263 (April 10, 1992). The Commission finds, therefore,
that the agency's decision dismissing allegation (3) of appellant's
complaint pursuant to 29 C.F.R. �1614.107(e) was improper. In remanding
allegation (3) to the agency for processing, we do not make a finding
as to whether allegation (3) of appellant's complaint states a claim
pursuant to 29 C.F.R. �1614.103.
CONCLUSION
In accordance with this decision, the agency's decision is AFFIRMED in
part, REVERSED in part and REMANDED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (1) and (3)
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 acknowledgement 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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:
May 28, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations