01a34588
12-04-2003
Ixtla Ccihuatl v. International Boundary and Water Commission
01A34588
12/4/2003
.
Ixtla Ccihuatl,
Complainant,
v.
Carlos M. Ramirez,
U.S. Commissioner,
International Boundary and Water Commission,
Agency.
Appeal No. 01A34588
Agency No. 03-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 18, 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.
Complainant initiated contact with the EEO Office on June 16, 2003,
alleging that she was the victim of discrimination on the bases of sex
and in reprisal for prior EEO activity. Informal efforts to resolve
her concerns were unsuccessful. Complainant filed a formal complaint
dated July 2, 2003.
In its final decision dated July 18, 2003, the agency determined that
the instant complaint was comprised of the following claims<1>:
1. time sheets from the Anzaldus Dam supervisor, do not reflect the
shift number after the tour of duty when time sheets [are submitted] to
[complainant], the Time and Attendance Technician. Designating shifts
after the tour of duty of employees is extra work and [complainant]
neither receives credit or compensation;
2. [complainant] is not allowed to operate the forklift to unload
shipments; and
3. [complainant] has been denied training opportunities.
The agency dismissed claim (1) for failure to state a claim, pursuant to
29 C.F.R. � 1614.107(a)(1). The agency determined that the duty identified
in this claim, involving listing the shifts of employees on time sheets,
is encompassed within complainant's position description.
Regarding claim (2), the agency determined that this claim �was raised
in [complainant's] EEO complaint Agency No. 00-11 which was dismissed,
[complainant] appealed this decision under EEOC Appeal No. 01A04880 and
the agency's finding was affirmed.�
Regarding claim (3), the agency determined that this claim � was
raised in EEO Case No. 360-A2-8697X, a decision of no discrimination
was issued...which decision [complainant] appealed under [EEOC Appeal]
No. 01A31765.�
Complainant, on appeal, argues that claim (1) represents �assignment of
work based on gender.� Regarding claim (2), complainant states, �[she]
was not sure at the time that the prohibition of the use of the forklift
was gender-based; and it only became apparent with the assignment of
the time sheet shift duty. This prohibition has never been grieved as
a gender based action... in any other previous complaint.�
On appeal, the agency reiterates its arguments in its final decision.
Claim (1)
The only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether she has alleged employment discrimination
covered by the EEO statutes. An employee is �aggrieved� if she 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, complainant claims in her formal complaint that she was
assigned additional duties regarding the completion of time sheets which
resulted in an increased workload. Complainant's claim is sufficient to
render her an aggrieved employee. Because complainant has alleged the
adverse action was based on sex and in reprisal for prior EEO activity,
she has raised a claim that is within the purview of the EEOC regulations.
We further find that the agency's statement that the time sheet duties in
question are part of complainant's position description goes to the merits
of complainant's complaint and is irrelevant to the procedural issue of
whether she states an actionable claim under Title VII. See Ferrazzoli
v. United States Postal Service, EEOC Request No. 05910642 (August 15,
1991). We find claim (1) was improperly dismissed for failure to state
a claim.
Claims (2) and (3)
Regarding claim (2), (denied use of the forklift), the record reflects
that the agency previously addressed this matter in a prior complaint
(Complaint No. 00-11), and the Commission affirmed the agency's dismissal
of this claim. Ccihuatl v. International Boundary and Water Commission,
EEOC Appeal Nos. 01A04880 (January 8, 2002). In the Commission's
decision of January 8, 2002, the Commission noted that sex was one of the
bases of discrimination raised by complainant. Even assuming arguendo,
that complainant did not list sex as a basis for discrimination in
Complaint No. 00-11, the addition of a new basis of discrimination in
the instant complaint would not convert a previously filed complaint into
a new and separate complaint. Thus, claim (2) is properly dismissed
for stating the same claim that has been decided by the Commission,
pursuant to 29 C.F.R. � 1614.107(a)(1).
Regarding claim (3), (denial of training opportunities), this claim was
also raised in a prior complaint. In that complaint, an Administrative
Judge found no discrimination, and this matter is currently pending appeal
before the Commission under EEOC Appeal No. 01A31765. Thus, claim (3)
is properly dismissed for stating the same claim that is pending before
the Commission, pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the dismissal of claim (1) is REVERSED and claim (1) is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations. The agency's decision to dismiss
claims (2) and (3) is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
12/4/2003
Date
1The claims are not numbered in the final
agency decision nor the formal complaint; however, they are numbered
herein for ease of reference.