01A32888_r
09-09-2003
Diana L. Scott, Complainant, v. Philip Merrill, Chairman, Export-Import Bank of the United States, Agency.
Diana L. Scott v. Export-Import Bank
01A32888
September 9, 2003
.
Diana L. Scott,
Complainant,
v.
Philip Merrill,
Chairman,
Export-Import Bank of the United States,
Agency.
Appeal No. 01A32888
Agency No. EODP-03-01
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 27, 2003, 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.
In her formal complaint, filed on October 4, 2002, complainant alleged
that she was the victim of unlawful employment discrimination in reprisal
for prior EEO activity.
In a final decision dated February 27, 2003, the agency determined that
the instant complaint was comprised of two claims, that were identified
in the following fashion:
(1) on or about July 18, 2002, complainant contacted the Director, Office
of Human Resources, in order to inform him about what she considered to
be hostile conduct from her supervisor; consequently, on September 16,
2002, she was detailed to another position outside of the Office of
Administrative Services; and
(2) on August 28, 2002, the Director, Office of Administrative Services,
called her into his office and accused her of submitting sub-standard
work and then informed her that, "you are not working up to the full
performance level GS-9 and that you were not working out on this job."
In its February 27, 2003 final decision, the agency dismissed claim
(1) pursuant to 29 C.F.R. � 1614.107(a)(5), for being moot. The agency
dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim.
On appeal, complainant contends that she never requested the detail, which
complainant indicated was for 120 days. Complainant also categorized the
detail as a �forced punitive action� and states that she was informed
that if she did not accept the detail, the agency was prepared to take
steps to terminate her employment. Complainant further contends that
she was harmed by the detail because she was denied an opportunity to
perform her duties in accordance with her position description and denied
training opportunities.
The Commission determines that the agency improperly categorized
the matters raised in the instant complaint by identifying them as
�claim 1" and �claim 2" as identified above. Instead, a fair reading of
complainant's complaint reflects that complainant claimed that subsequent
to the July 18, 2002 contact with a Human Resources Director regarding
purported hostile conduct by complainant's supervisor, complainant has
been subjected to alleged discriminatory actions that included being
accused by an agency Director of performing sub-standard work (identified
by the agency in �claim 2") and that culminated in complainant's
being forced to be detailed to a position outside of the Office of
Administrative Services (identified by the agency in � claim 1").
The Commission determines that the matter identified by the agency
as �claim 1" has not been rendered moot as a result of complainant's
being assigned to a detail, as the detail itself is an element of her
discrimination claim. Moreover, contrary to the agency's determination
regarding the August 28, 2002 accusation identified as �claim 2,� we
find that this matter states a claim. Specifically, by alleging
that the August 28, 2002 incident is part of a series of alleged
discriminatory actions, complainant has stated a cognizable claim under
the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303
(November 12, 1993).
Accordingly, the agency's decision to dismiss the instant complaint on
the grounds of mootness and for failure to state a claim is REVERSED.
The complaint, as identified herein, is REMANDED to the agency for
further processing in accordance with the ORDER below.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
September 9, 2003
__________________
Date