01982908
05-12-1999
Arla M. Gaines, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Arla M. Gaines v. Small Business Administration
01982908
May 12, 1999
Arla M. Gaines, )
Appellant, )
)
v. ) Appeal No. 01982908
) Agency No. 07-97-615
Aida Alvarez, )
Administrator, )
Small Business Administration, )
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., Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The final
agency decision was issued on January 27, 1998. The appeal was received
by the Commission on March 2, 1998. 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.<1>
ISSUES PRESENTED
1. The first issue presented on appeal is whether the agency properly
dismissed allegations 2, 3, 4, and 8 of appellant's complaint on the
grounds of failure to state a claim.
2. The second issue presented on appeal is whether the agency properly
dismissed allegation 5 of appellant's complaint on the grounds that
it alleged that a preliminary step to taking a personnel action is
discriminatory.
3. The third issue presented on appeal is whether the agency properly
dismissed allegations 1 and 7 on the grounds that appellant failed to
contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on May 27, 1997.
On July 2, 1997, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her sex
(female), age (dob 1/10/53), physical disability (weight and asthma),
and in reprisal for her previous EEO activity when:
1. (a) On September 20, 1995, she was accused of maintaining secret
files. The PMAS folders for her subordinate employees were seized and
delivered to the Personnel Department.
(b) From October 1, 1995 through February 1996, she was subjected to
a management review/investigation which was conducted by the Deputy
Personnel Director, a Loan Officer, and the Acting Area Counsel, her
immediate supervisor. Appellant alleged that this review/investigation
was conducted in an "illegal, prejudicial, biased, punitive, publicly
humiliating manner".
(c) On February 1, 1996, the Deputy Personnel Director and Loan
Officer issued a management review report based on the above-described
investigation which was "incorrect, untrue, biased, misleading,
patently defamatory", and omitted material facts favorable to her.
Appellant alleged that this report recommended that she be suspended for
a week without pay and not be allowed to lead or supervise staff again.
(d) In April 1996, she received notice that she was eligible to receive
a PMAS bonus due for her 1995 PMAS rating "Outstanding", but she never
received this bonus.
(e) On July 2, 1996, she was removed from her position for 60-90 days
to undergo supervisor training; she was forbidden from speaking to or
associating with any of the employees she supervised during the period
she was in training; she was directed to move out of her office to a
different location and was not given any assistance; her backup lead
attorney was promoted into her position rather than being designated
as "acting"' a second management review/investigation was conducted by
the Acting Area Counsel and the Area Counsel.
(f) Payment of her Special Act Award was delayed from May 1996 until
September 1996.
(g) On September 17, 1996, the Acting Area Counsel took the following
actions without discussing them with appellant: (1) she would be required
to work on a section of the portfolio at the same time she was assigned
to supervise the Common Damage Team; (2) one of her subordinate employees
would assign her a portion of the portfolio to work.
Appellant learned on November 1, 1996, about an informal agreement entered
into between one of her subordinates and the agency in February 1996.
This agreement allegedly included a clause that prohibited her from
making any future year and a day appointment decisions regarding employees
under her supervision.
On January 2, 1996, she was admonished by the Acting Area Counsel for
motioning with her finger to one of her male subordinates.
On February 21, 1997, she was informed that she had to travel for a
meeting in the Central Office on a Sunday (March 9, 1997), which she
interpreted to mean that she would not be paid for her travel time.
On April 30, 1997, she learned that her interim PMAS evaluation was
lowered from "Outstanding" to "Exceeds Fully Successful".
On May 22, 1997, she was informed that her year and a day appointment
status had been taken away; she was downgraded from a GS-13/2 to a
GS-12/4 grade level instead of a GS-12/6 grade level; she would not
be returned to her former duties as a Lead Attorney; she would not be
assigned a section of the portfolio to work; and she had to vacate her
office and move to a desk in the general attorney section.
7. In January 1997, she learned that an underacted copy of the
management review report was "leaked" to employees who were under her
supervision.
8. Appellant was discriminated against due to her sex when her civil
and constitutional rights were repeatedly violated from September 1995
until July 1997.
In its final decision, the agency dismissed allegations 2-4 and 8 of
appellant's complaint on the grounds that these allegations failed to
state a claim. The agency determined with regard to allegation 2 that
appellant has not alleged that her authority to make decisions regarding
future year and a day appointments was removed, or that she attempted to
exercise such authority and was denied by the agency. As for allegation
3, the agency concluded that the supervisor's verbal admonishment did
not constitute, by itself, an adverse change in the terms, conditions or
privileges of appellant's employment. With respect to allegation 4, the
agency determined that appellant did not allege that she actually traveled
on March 9, 1997, or that she requested payment of travel time for that
day and the agency denied her request. With regard to allegation 8, the
agency determined that appellant failed to allege a specific, identifiable
matter within the purview of the EEO process. The agency noted that
the EEO process does not address constitutional issues. Allegations 1
and 7 were dismissed on the grounds that appellant failed to contact an
EEO Counselor in a timely manner. The agency stated that November 19,
1996, is considered the date of appellant's initial EEO contact for
allegation 1 in light of the fact that appellant filed an MSPB appeal
on that date that was subsequently dismissed for lack of jurisdiction.
Nonetheless, the agency determined that appellant failed to contact an
EEO Counselor within the 45-day limitation period as the actions set
forth in allegation 1 occurred no later than September 17, 1996. As for
allegation 7, the agency determined that appellant's EEO contact of May
27, 1997, was untimely because appellant learned in January 1997, of the
release of certain unedited information from the management review report.
Finally, allegation 5 was dismissed on the grounds that the 1997 interim
performance rating was a preliminary step to taking a personnel action,
and not an official or final agency action. Allegation 6 was accepted
for investigation.
On appeal, appellant contends that she could not file a complaint within
the 45-day limitation period because she was not in possession of all
relevant facts and she was continually under attack by male supervisors
who were obstructing justice and making it as difficult as possible
for her to function. According to appellant, she was repeatedly told
by her male supervisors that she had no recourse for the discriminatory
and retaliatory actions taken against her. Appellant maintains that the
agency deliberately kept from her information that she needed to prove
her allegations of discrimination. Appellant claims that she filed a
complaint with the Merit Systems Protection Board within nineteen days
of discovering the relevant information. According to appellant, she
did not know, nor was she notified, of the time limit for contacting
an EEO Counselor. With regard to allegation 2, appellant argues that
she alleged that she was prohibited from making any future year and a
day appointment decisions regarding employees under her supervision.
As for allegation 3, appellant contends that the evidence shows that her
male supervisor was threatening her, and that subsequent to her filing
of her first EEO complaint, this supervisor took an adverse personnel
action against her based in part on his previous threat. With respect
to allegation 8, appellant maintains that male supervisors were treated
differently than her regarding identical matters. Appellant states that
no male supervisor had his civil and constitutional rights violated.
With regard to allegation 5, appellant contends that the interim PMAS
review was the final evaluation that she received since she was not
issued a final PMAS review when she was terminated.
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 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. The Commission's Federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
In the present case, appellant alleges that she was subjected to
harassment with regard to the incidents set forth in her complaint.
The allegations that were dismissed on the grounds of failure to state a
claim included appellant being prohibited from making any future year and
a day appointment decisions regarding employees under her supervision,
appellant being admonished by the Acting Area Counsel for motioning
with her finger to one of her male subordinates, and appellant being
informed that she had to travel for a meeting in the Central Office on
a Sunday. Viewing these identified incidents and the events set forth
in the accepted allegation, allegation 6, in the light most favorable to
appellant, we find that appellant has stated a cognizable claim under
the EEOC Regulations. See Cervantes v. United States Postal Service,
EEOC Request No. 05930303 (November 12, 1993). Accordingly, the agency's
decision to dismiss allegations 2-4 of appellant's complaint for failure
to state a claim was improper. Allegations 2-4 are hereby REMANDED for
further processing in accordance with the ORDER below.
As for allegation 8, we find that this allegation does not raise any
additional specific incidents beyond those already set forth in the
complaint. The claim of a violation of constitutional rights does not
fall within the purview of the statutes referenced above, and therefore
this claim can not be challenged through the EEO process. Accordingly,
the agency's decision to dismiss allegation 8 on the basis of failure
to state a claim was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(e) provides in part that the agency
shall dismiss a complaint or a portion of a complaint that alleges
that a proposal to take a personnel action, or other preliminary step
to taking a personnel action, is discriminatory. The Commission has
held that if an individual alleges that the preliminary step was taken
for the purpose of harassing the individual, the allegation cannot be
dismissed since it has already affected the employee.
In the present case, appellant alleged that her interim PMAS performance
rating was part of a pattern of harassment by the male supervisors.
Consequently, we find that allegation 5 cannot be dismissed as a
preliminary step since it already affected appellant. Furthermore,
we note that appellant alleged that the interim PMAS became her final
rating of record when she was terminated suggesting that it was not a
preliminary step in any event regardless of her complaint of harassment.
Consequently, we find that allegation 5 was improperly dismissed and it
is hereby REMANDED to the agency for further processing.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual 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.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993). The Commission found in
Pride that the agency had merely made a generalized affirmation that
it posted EEO information. Id. The Commission found that it could not
conclude that appellant's contact of an EEO Counselor was untimely without
specific evidence that the poster contained notice of the time limit.
Id.
The incidents set forth in allegation 1 occurred over the period of
September 20, 1995 - September 17, 1996. The matter raised in allegation
7 was brought to appellant's attention in January 1997. With regard to
the issues raised in allegation 1, the date of appellant's EEO contact
is deemed to be November 19, 1996, because that is when appellant filed
her appeal with the Merit Systems Protection Board. With respect to
allegation 7, appellant did not initiate contact with an EEO Counselor
until May 27, 1997. Appellant's EEO contact concerning these allegations
was after the expiration of the 45-day limitation period. However, we
note that appellant argues on appeal that she was unaware of the 45-day
limitation period for contacting an EEO Counselor. The agency failed
to present evidence to show that appellant was informed or aware of
the applicable time limit, or otherwise refute appellant's contention
that she lacked knowledge of the applicable limitation period for
contacting an EEO Counselor. Accordingly, the agency's decision to
dismiss allegations 1 and 7 of appellant's complaint on the grounds of
untimely contact is VACATED. Allegations 1 and 7 are hereby REMANDED
to the agency for further processing in accordance with the Order below.
CONCLUSION
The agency's decision to dismiss allegation 8 on the grounds of failure
to state a claim is hereby AFFIRMED. The agency's decision to dismiss
allegations 2-4 on the grounds of failure to state a claim is hereby
REVERSED. The agency's decision to dismiss allegation 5 on the grounds
that it alleges that a preliminary step to taking a personnel action
was discriminatory is hereby REVERSED. The agency's decision to dismiss
allegations 1 and 7 on the grounds of untimely EEO contact is hereby
VACATED. Allegations 1, 2-5, and 7 are hereby for further processing
pursuant to the Order below.
ORDER
1) The agency is ORDERED to conduct a supplemental investigation as to
allegations 1 and 7, which shall include the following actions:
The agency is ORDERED to conduct a supplemental investigation with regard
to the issue of when appellant had actual or constructive notice of the
time limit for contacting an EEO Counselor. The agency shall gather any
evidence necessary to show whether and when appellant had actual knowledge
or was put on constructive notice of the time limit for contacting an EEO
Counselor. The agency shall make a determination as to whether appellant
contacted an EEO Counselor in a timely manner after she had actual or
constructive notice of the time limit for contacting an EEO Counselor.
If an EEO poster was displayed at appellant's work facility during the
relevant period, then the agency shall supplement the record with a copy
of the EEO poster. The agency shall, within thirty (30) calendar days
of the date this decision becomes final, issue a notice of processing
or new final agency decision.
A copy of the notice of processing or new final agency decision must be
sent to the Compliance Officer as referenced below.
2) The agency is ORDERED to process the remanded allegations
(allegations 2-5) in accordance with 29 C.F.R. �1614.108. The agency
shall acknowledge to the appellant that it has received the remanded
allegations (Allegations 2-4) 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.
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 (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. 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 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed.