01A13825_r
06-27-2002
Beverly J. Gnau, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Beverly J. Gnau v. Department of Commerce
01A13825
June 24, 2002
.
Beverly J. Gnau,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A13825
Agency No. 006300074
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 17, 2001, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of sex, disability, and age, as follows:
Complainant called in on November 29, 1999, to tell her supervisor,
(S1), that she was in the emergency room and he insinuated that she
was lying when he responded by saying "yeah right;"
2. Complainant gave S1 a doctor's note regarding her daughter's illness
on December 12, 1999, and he threw it at her;
S1 overheard her conversation with a coworker just before Christmas 1999,
regarding a grand jury testimony for a child support hearing and became
openly hostile towards her;
Complainant phoned S1 on January 12, 2000, to ask if he still had
a previously submitted leave slip and he responded "no" and hung up
on her;
[A] BC290 was filed on her for allegedly calling the Section Chief a
"bitch;"
In April 2000, no action was taken on her request not to be reassigned
back under S1's supervision; and
Complainant called in June 2000, to request leave and S1 was rude to
her and requested a doctor's note, even though she was not and had never
been on leave restriction.
Complainant further alleged that she was subjected to reprisal when:
Complainant's employment was terminated in November 2000, but the
termination was later rescinded on January 8, 2001, upon her request; and
Complainant was instructed to report back to S1 despite the complaint
filed against him.
The agency dismissed complainant's harassment claims (claims 1 - 7) on
the grounds that complainant had previously filed a grievance with her
union regarding the same matters. The agency also dismissed the reprisal
claims (claims 8 and 9) on the grounds that filing a grievance is not
a protected EEO activity covered by the Commission's anti-reprisal laws.
The record in this case does not contain a copy of a negotiated
agreement that provides for the acceptance of grievances which allege
discrimination. Accordingly, the agency decision dismissing claims 1 -
7, pursuant to 29 C.F.R. �1614.107(a)(4), was improper.
Regarding claims 8 and 9, the Commission finds that complainant has not
shown or claimed that she engaged in prior protected activity as defined
in 29 C.F.R. �1614.101(b); complainant did not raise allegations of
discrimination in the cited grievance. Therefore, we find the agency
properly dismissed claims 8 and 9 for failure to state a claim pursuant
to 29 C.F.R. �1614.107(a)(1).
Therefore, the Commission AFFIRMS the agency's dismissal of claims 8
and 9. The Commission REVERSES the agency's dismissal of claims 1 -
7 and these claims are REMANDED to the agency for further processing in
accordance with the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 27, 2002
__________________
Date