0120131476
06-21-2013
Graciela M. Contreras, Complainant, v. John M. McHugh, Secretary, Department of the Army (National Guard Bureau), Agency.
Graciela M. Contreras,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army
(National Guard Bureau),
Agency.
Appeal No. 0120131476
Agency No. T-2013-02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 28, 2013, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a EEO Specialist at the Agency's facility in Sacramento, California.
On February 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when, on January 8, 2013, Complainant received a document from the Office of Chief Counsel stating that the Agency would be conducting a military investigation into Complainant's prior EEO complaint.
The Agency dismissed the complaint for failure to state a claim. The Agency found that the claim was not within its jurisdiction pursuant to the Agency's Regulation (AR) 690-600 National Guard Regulation (AF) 40-1614, dated 15 March 1993. Volume 11, chapter 4-10a. The Agency noted that Complainant added the basis of disability which had not been previously raised before the EEO Counselor. Finally, the Agency found that this complaint constituted a "spin-off" complaint based on Complainant's prior EEO activity.
This appeal followed. Complainant has asserted that she was subjected to unlawful retaliation and that the matter should be remanded back to the Agency.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint 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, .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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In the complaint at hand, Complainant has asserted that she was subjected to reprisal for her prior EEO activity when she was informed by the Agency that it would be conducting a military internal investigation into her prior EEO compliant. In recent cases presenting similar circumstances, we have found that the initiation and processing of internal investigations for retaliatory motives can state a viable reprisal claim. See Finn v. U.S. Postal Serv., EEOC Appeal No. 0120113481 (Nov. 15, 2012); Santiago v. Dep't of Homeland Security, EEOC Appeal No. 0720100038 (March 2, 2011); De Vore v. Dep't of Justice, EEOC Request No. 0520100546 (Jan. 27, 2011); Murphy v. U.S. Postal Serv., EEOC Appeal No. 0120102787 (Oct. 26, 2010). We find Complainant has alleged sufficient harm to warrant investigation into her claim and further processing of her complaint.
We note that the Agency asserted that it lacked jurisdiction over the matter. However, the Agency failed to provide any evidence beyond stating its position to support its assertion that it lacked jurisdiction. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). We find that the Agency's dismissal was not appropriate.
Finally, the Agency noted that Complainant failed to notify the EEO Counselor of the basis of disability during the pre-complaint processing of the matter at hand. As such, the Agency dismissed the basis of disability for failure to raise it before the EEO Counselor. The Commission has held that a complainant may allege discrimination on all applicable bases, including sex, race, national origin, color, religion, age, disability, genetic information and reprisal, and may amend his or her complaint at any time, including at the hearing, to add or delete bases without changing the identity of the claim. See Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. U.S. Postal Serv., EEOC Request No. 05940563 (Jan. 19, 1995). As such, we find the dismissal of the basis of disability was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 21, 2013
__________________
Date
2
0120131476
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131476