01992835
11-08-1999
Charlotte Bergh, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Charlotte Bergh, )
Appellant, )
)
v. ) Appeal No. 01992835
) Agency No. TD 99-4046
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On February 15, 1999, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on January 14,
1999, pertaining to a complaint of unlawful employment discrimination
pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The Commission accepts
appellant's appeal in accordance with EEOC No. 960, as amended.<1>
The record reflects that on July 29, 1998, appellant initiated contact
with an EEO Counselor. During the counseling period, appellant alleged
that she was being treated differently in comparison to the Asian
employees within her office.
On November 24, 1998 appellant filed a formal compliant, alleging that
she was the victim of unlawful employment discrimination on
the basis of race, gender, national origin and retaliation. The complaint
was comprised of the following allegations in which appellant underwent
counseling for.<2>
1. Appellant received an unfair performance appraisal dated August
7, 1998;
2. Appellant was ordered not to contact the General Accounting Office
during the course of her audits;
3. Appellant's manager failed to provide out briefs on her audits;
4.Appellant's manager required detailed explanations for her absence on
October 8, 1998; and
5. Appellant's manager disputed the amount of time she used to confer
with her EEO Counselor and requested that appellant provide her with
twenty-four hour notice before she spends time with her counselor.
The agency, on January 14, 1999, issued a final decision (FAD). The FAD
shows the grounds the agency cited to support the dismissal of issues four
and five of the instant complaint. The agency dismissed the allegations
four and five for failure to state a claim, because the agency found that
appellant was not an �aggrieved employee�. Furthermore, the agency has
dismissed appellant's basis of retaliation because the agency claims that
appellant has not engaged in a protected activity. It is upon this
decision that appellant appeals.
On appeal, appellant, through her attorney, argues that she has engaged
a protected activity. Specifically, appellant asserts that on July
29, 1998 when she contacted the EEO Counselor, she engaged a protected
activity.
With regard to reprisal discrimination, the Commission has stated that:
"the anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance.... A variety of activities has been
found to constitute opposition .... Because the enforcement of Title VII
depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide 'exceptionally broad protection to those who
oppose such practices'...." Whipple v. Department of Veterans Affairs,
EEOC Request No. 05910784 (February 21, 1992) (citations omitted).
EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation 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 forty years of age),
the Rehabilitation Act (discrimination on the basis of disability), or
the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or
the Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in
any stage of administrative or judicial proceedings under these statutes.
In the present case, appellant has clearly engaged a protected activity
when she contacted an EEO Counselor on July 29, 1998, in an effort to
combat discrimination within Department of the Treasury. Accordingly,
the agency's final decision dismissing appellant's basis of reprisal
was improper and is therefore REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). 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 (April 21, 1994).
The only proper questions in determining whether an allegation is
within the purview of the EEO process are: (1) Whether the complainant
is an aggrieved employee and (2) Whether he has alleged employment
discrimination covered by the EEO statutes. An employee is �aggrieved�
if he 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). Here, appellant alleged that her supervisor required
her to provide �detailed� explanations for her absence on October 8, 1998
and she required appellant to provide her twenty-four hours advance notice
before she meets with her EEO Counselor and that she disputed the time she
spent with her EEO Counselor on November 3, 1998. Appellant's allegations
are sufficient to render her an �aggrieved employee�. Furthermore,
since appellant has alleged that the adverse action was based on reprisal,
race, age and national origin, appellant has raised allegations within
the purview of the EEOC regulations.
Accordingly, the agency's decision to dismiss appellant's complaint
for failure to state a claim was improper and is REVERSED. Appellant's
complaint is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations and basis in
accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegations and basis
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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Since the agency did not supply a copy of a legible certified
mail return receipt or any other material capable of establishing
the date appellant received the agency's final decision, the
Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.
2According to the record, appellant, asserts in her compliant that
she has suffered discrimination from her supervisor on the basis of
retaliation. This basis was not initially brought to the attention of
the EEO Counselor, however, the Counselor was informed of the basis and
the issues prior to filing of the formal complaint. Appellant asserts
that the reprisals are in response to the initial contact with the EEO
counselor. In addition, appellant, through her attorney, submitted
a letter, at the request of the agency, to clarify the issues within
the complaint.