01973904
06-21-1999
Dorothy Pleasant, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Dorothy Pleasant, )
Appellant, )
) Appeal No. 01973904
v. ) Agency No. FW 94 19
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), color (black),
national origin (African-American)<1>, religion (Catholic), sex (female),
reprisal (prior EEO activity), age (54), physical disability (bad back,
poor eyesight), and mental disability (mental anguish), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791, et seq. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED in part and VACATED and REMANDED in part.
The issues on appeal are whether appellant was discriminated against when:
On November 2, 1993, agency management officials violated the privacy
requirements of her EEO participation by disseminating the FAD in cases
FW 89 09, FW 90 19, FW 90 19A and FW 90 19B via electronic mail, in
reprisal for her EEO activity;
Management inordinately delayed processing of her EEO complaints in
reprisal for her prior EEO activity;
Management advertised a Supervisory Loan Specialist under Vacancy
No. 06-MSN-94-0001, dated December 1, 1993, as a heretofore unknown
GS-11/12; where prior supervisory positions have not been advertised at
the GS-11 level. This was done to preselect a younger female, and in
reprisal by management;
The EEOC Administrative Judge (AJ) retaliated against her during the EEO
process by failing to excuse himself during the EEOC hearing concerning
EEO case numbers FW 91 05A, FW 91 05B and FW 91 32, and that he rendered
a prejudicial decision on June 22, 1993;
From 1987 to the present, management denied her a proper rating of
'outstanding' while lighter skinned black females who were not disabled
received such ratings; and
Agency management officials continued to deny her a 486 computer sent to
her from headquarters, while providing another employee (CW) exclusive
use of an agency laptop computer. Agency management officials abused
another agency computer belonging to a younger white female (CW2) who
must now 'stay on' twenty-four hours each day. Although CW2 cannot
use the computer fully to perform her job duties, she nonetheless
received two 'outstanding' awards due to her close friendship with CW.
Such actions represented continued reprisal against appellant for her
continuing EEO activity.
The record reveals that appellant, a GS-11 Housing Management Specialist
at the agency's New Orleans, Louisiana office, filed a formal EEO
complaint with the agency on February 16, 1994, alleging that the agency
had discriminated against her as referenced above. On May 18, 1994, the
agency accepted issues (1) through (3), but declined to accept appellant's
basis of Mental Disability (Mental Anguish), noting that mental anguish
did not constitute a disability. The agency rejected issue (4), noting
that it did not have jurisdiction over the actions of AJ's. The agency
rejected issue (5) and (6) as stating the same claim as raised in prior
or pending EEO complaints. The agency provided appellant fifteen days to
object in writing as to how the agency framed the issues in its letter of
partial acceptance and partial dismissal. Appellant drafted a letter to
the agency dated June 6, 1994, objecting to the dismissal of issues (4)
through (6). Subsequently, appellant noted in her investigative affidavit
her continued objection to the agency's rejection of these issues. At the
conclusion of the investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
When appellant did not appear at the hearing, the AJ remanded the case to
the agency, recommending dismissal pursuant to 29 C.F.R. � 1614.107(g),
for failure to cooperate. The agency elected to issue a final decision
on the merits of appellant's allegations.
The FAD dismissed issue (3) pursuant to 29 C.F.R. � 1614.107(a), for
failure to state a claim of harm, because appellant was eligible and
could have applied for the position at either grade. The agency noted
that appellant's allegation that the position was posted to preselect
another candidate was speculative, and in any case, the individual
thought to be preselected was in fact not selected for the position.
Concerning appellant's allegation of discrimination on the basis of
mental disability (mental anguish), the agency again noted that mental
anguish does not constitute a mental disability. The FAD then dismissed
issue (4) pursuant to 29 C.F.R. � 1614.107(a), noting that the agency
does not have jurisdiction over the actions of AJ's and cannot process
claims against them. Concerning issues (5) and (6), the agency dismissed
these allegations pursuant to 29 C.F.R. � 1614.107(a), for stating the
same claim that is pending before or had been decided by the agency
or Commission. The agency also noted that notwithstanding appellant's
letter dated June 6, 1994, issue (6) failed to state a claim because
appellant did not allege harm to herself when CW was provided a laptop,
or when CW2 received 'outstanding' awards.
Concerning issues (1) and (2), the agency concluded, without addressing
whether appellant had established the requisite prima facie cases, that
the agency had articulated legitimate, nondiscriminatory reasons for
its actions, namely, that the transmission of information concerning
the status of appellant's EEO complaints via electronic mail is
confidential, part of the agency's standard operating procedure, and
that such communications are restricted to only management officials who
have a need to know such information. The agency noted that passwords
protect unauthorized access to electronic mail, and that in this case,
appellant's FAD was not attached to the electronic mail, but that the
electronic mail message only discussed the status of some of appellant's
EEO complaints. Concerning the delayed processing of appellant's EEO
complaints, the agency's Director of EEO stated that while there is a
shortage of employees at the agency's EEO office, resulting in delays in
the processing of EEO complaints, appellant's allegations were delayed
no more than those of any other employee at the agency. The FAD found
that appellant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination
under any of appellant's alleged bases. In reaching this conclusion,
the FAD found that there was nothing improper or discriminatory about
the use of electronic mail to convey necessary information about the
status of appellant's EEO complaints for agency management officials
with a need to know. Appellant makes no new contentions on appeal,
and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission first notes
that while the agency initially did not accept issues (4) through (6)
for processing, the agency nonetheless addressed these issues in its
final agency decision. The Commission will therefore address each of
appellant's six issues in her formal complaint.<2> The Commission agrees
with the agency's conclusion in issues (3), (4) and (6), that appellant
failed state a claim of discrimination. See Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). Concerning issues (1)
and (2), and under the standards set forth in McDonnell Douglas v. Green,
411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); and
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
we agree with the agency that appellant failed to present evidence that
more likely than not, the agency's articulated reasons were a pretext for
retaliatory or discriminatory animus.<3> Finally, concerning issue (5),
the Commission notes that the agency did not provide any documentation
in the record to demonstrate that the allegation in issue (5) stated a
claim currently pending or previously decided in another EEO complaint.
Absent such evidence, we are unable to affirm the veracity of the agency's
rationale for dismissing this allegation. Therefore, after a careful
review of the record, including arguments and evidence not specifically
addressed in this decision, we AFFIRM in part the FAD, with respect to
issues (1) through (4) and (6), and VACATE the FAD's conclusion concerning
issue (5), REMANDING this matter for a supplemental investigation in
accordance with the following ORDER, and the applicable EEOC Regulations.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall supplement the record to include evidence
demonstrating that issue (5) is identical to a claim currently or
previously raised by appellant in another EEO complaint. Within thirty
(30) calendar days from the date this decision becomes final, the
agency shall issue a notice either accepting issue (5) for processing,
or dismissing issue (5) on procedural grounds, with applicable appeal
rights. Copies of the agency's letter of acceptance or final decision
must be submitted 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 the
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 the
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. 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 (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:
June 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The Commission notes
that while the agency identified National Origin
as a basis of discrimination, appellant did not
allege National Origin in her formal complaint.
2 The Commission notes that appellant did not allege mental disability
(mental anguish) in her formal complaint.
3 The Commission notes that while an agency may proceed to the ultimate
issue of discrimination in some circumstances pursuant to United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983), we
remind the agency that it is appellant's initial burden to establish
a prima facie case of discrimination concerning each basis alleged in
her complaint.