01A14376_r
12-18-2002
Margaret S. Albitre, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Margaret S. Albitre v. U.S. Department of Agriculture
01A14376
December 18, 2002
.
Margaret S. Albitre,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A14376
Agency Nos. R5SA008 and R5SA048
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's complaints, in part, and improperly dismissed complainant's
complaints, in part. Complainant filed a complaint on June 14,
2001, claiming that she was discriminated against on the basis of sex
(female).<1> The agency determined that complainant had not received
EEO counseling prior to the filing of her June 14, 2001 complaint.
Therefore, on July 19, 2001, the agency remanded the complaint, Agency
Number R5SA008, for pre-complaint processing, by counseling or alternative
dispute resolution. The complaint was not resolved, and a notice of
right to file a complaint was issued. Complaint filed another complaint,
Agency Number R5SA048, on September 24, 2001, again claiming that she was
discriminated against on the basis of sex (female). The agency issued
a final decision on complainant's consolidated complaints on November
14, 2001.
The agency has defined complainant's complaints as claiming that she
was discriminated against on the basis of sex (female) when:
Complainant was removed from her position at the Sequoia National Forest
through a Reduction-In-Force (RIF), which became effective on October
15, 1993; and, two men from the Sequoia National Forest who were also
supposed to be subject to the RIF, were not;
On December 1, 1993, complainant received a directed reassignment to
the Inyo National Forest;
Complainant held a career ladder position (GS-7/9/11) at the Sequoia
National Forest, but the position to which she was reassigned at the Inyo
National Forest on December 1, 1993, was not a career ladder position;
Complainant's red card qualifications were taken away;<2>
Complainant was told that she could not join in search and rescue
missions;
Complainant was harassed by a male supervisor;
On July 17, 1997, complainant quit her job at the Inyo National Forest;
and
Complainant's supervisor convinced complainant to change her reason
for quitting her job at the Inyo National Forest.
We note that complainant has raised no objections on appeal to the manner
in which the agency has defined her claims.
Prior to the filing of the September 24, 2001 complaint, Agency
No. R5SA048, and prior to the issuance of the agency's November 14,
2001 decision, complainant filed an appeal with the Commission, on July
7, 2001. The agency has asked the Commission to dismiss complainant's
July 7, 2001 appeal as premature, and, because complainant has not
submitted an appeal following the agency's November 14, 2001 decision,
the agency has also requested that we find complainant's appeal to be
untimely filed. Under the circumstances in the instant case, we do
not find complainant's July 7, 2001 appeal to be premature; rather,
we now consider it to be a timely appeal from the agency's November 14,
2001 decision. Therefore, we will consider the grounds upon which the
agency dismissed complainant's consolidated complaints.
Complainant was a class member in Donnelly v. Glickman<3>, Civil Action
No. C 95-4389 DLJ.<4> Donnelly v. Glickman was filed in U.S. District
Court for the Northern District of California. The class, via the
class agents, entered into a settlement agreement, which was signed on
September 11, 2000, and had a Final Approval Date of February 6, 2001.
The Final Approval Date is the date on which the settlement agreement
was approved by the Court following a fairness hearing.
In the agency's November 14, 2001 decision in the instant case, the
agency dismissed claims 1, 2, and 3 of complainant's consolidated
complaints, because they did not meet the jurisdictional requirements
of the settlement agreement.
The settlement agreement states, in pertinent part:
Section 2.2: The class covered by and eligible for relief under this
Agreement shall be the class of all past and current non-supervisory
female employees of Region 5 who have been, or are being subjected
to a sexually hostile work environment at any time since February 1,
1994, through the date of Final Approval, and who are seeking equitable
relief only.
Section 3.3: Subject to [S]ections 20 and 21, this Agreement resolves
finally and forever and bars hereafter any and all individual or class
claims arising more than 45 days prior to the Final Approval Date that
any plaintiff or class member may have, or may have had, against the
Department relating to sexual harassment and retaliation relating to
sexual harassment and arising from any events, acts, omissions, policies,
practices, procedures, conditions or occurrences in connection with
the covered class claims at any time through and including the Final
Approval Date.
Section 20.1: Any Class Member who has filed a complaint of discrimination
relating to sexual harassment or retaliation for EEO activity related
to sexual harassment in accordance with the provisions of 29 C.F.R. Part
1614 and 42 U.S.C. � 2000e-16, and whose complaint is still pending before
the Department or Agency, the Equal Employment Opportunity Commission,
or any court, may continue with such complaint. The matters raised in
those complaints shall be redressed, if at all, through the regular
procedures of the forum in which the matter is pending in accordance
with current law and regulation. This Agreement shall not be construed
to provide any other remedy, or bar, restrict or limit in any manner
any such claims, with respect to the matters raised in such complaints.
Section 21.1: Any [C]lass [M]ember who seeks to allege an individual
claim of discrimination relating to sexual harassment or retaliation
for EEO activity related to sexual harassment that arose on or
after February 1, 1994, and that is not currently pending before,
or has not previously been rejected or decided by, the Department,
the Equal Employment Opportunity Commission, or any court, or been
settled at any stage of any proceeding, may initiate a complaint with
respect to such matter by filing a Settlement Agreement Complaint Form
(�Complaint Form�) with the Complaint Administrator. For purposes of
this section, a claim shall not be excluded from processing solely
because the complainant consulted an Agency EEO counselor/mediator
with respect to the claim at issue, provided that no claim shall be
considered if the complainant received a Notice of Right to File a
formal EEO complaint. In the event of a dispute about whether the
complainant received a Notice of Right to File, the initial burden
shall be upon the complainant to declare under penalty of perjury
that she did not receive a Notice for Right to File with respect to
the claim at issue, whereupon the burden shall be upon the Agency to
demonstrate that she did in fact receive such a notice.
Section 21.6: The Complaint Administrator shall refer all Complaint
Forms as to which there has been a determination of eligibility to
the Agency for informal processing and shall forward copies to the
Department's Office of Civil Rights (OCR). The Agency shall immediately
begin processing all such complaints under normal Agency informal
complaint processing procedures. Individuals who are referred to the
informal process shall be offered the alternative dispute resolution
procedures set forth in section 11 above.
Section 21.7: After the conclusion of the time for informal processing
under paragraph 21.6, OCR shall begin formal processing of the complaints
not resolved through informal processing in accordance with the provisions
of 29 C.F.R. Part 1614 and 42 U.S.C. � 2000e-16. OCR shall dismiss any
such complaint raising a claim that previously had been dismissed in
accordance with 29 C.F.R. � 1614.107, or that had been filed previously
alleging discrimination on an alternate basis. OCR shall dismiss
any such complaint if the complainant is not a member of the Class or
if the discriminating conduct alleged in the complaint is outside the
class period. In the event of a dismissal, the notice of dismissal shall
include a separate notation stating whether the complaint was dismissed
because the complainant is not a member of the Class, the complaint
is outside the class period, or the claim has been filed previously
on an alternate basis, and the facts supporting those determinations.
OCR shall promptly provide copies of any acceptance or dismissal of a
complaint raised in a Complaint Form filed under this Agreement to the
complainant and the complainant's personal representative, if any. On a
monthly basis, Defendant shall provide to Class Counsel and counselor for
Defendant copies of all acceptances or dismissals of complaints raised in
a Complaint Form filed under this Agreement. Within ten days of request,
Class Counsel may review any underlying documents relied upon by OCR in
making a determination to accept or dismiss such a claim.
The agency dismissed claims 1, 2, and 3, because they arose on October
15, 1993, and December 1, 1993, which is prior to February 1, 1994,
and outside of the class period. Complainant raises no new contentions
on appeal.
According to Section 3.3 of the settlement agreement, the agreement
resolves:
[A]ny and all individual or class claims arising more than 45 days prior
to the Final Approval Date that any plaintiff or class member may have,
or may have had, against the Department relating to sexual harassment
and retaliation relating to sexual harassment, and arising from any
events, acts, omissions, policies, practices, procedures, conditions
or occurrences in connection with the covered class claims at any time
through and including the Final Approval Date.
The Final Approval Date was February 6, 2001. Claims 1, 2, and 3 all
arose more than 45 days prior to February 6, 2001. The Commission finds
that claims 1, 2, and 3, are related to the class claims. Section 3.3
is �subject to [S]ections 20 and 21.� Therefore, we shall now evaluate
complainant's claims under the pertinent provisions of Sections 20 and 21.
Section 20.1 of the settlement agreement pertains to class members whose
complaints were pending at the time in which the settlement agreement
received final approval. Complainant filed her complaints on June 14,
2001, and on September 24, 2001. Therefore, complainant's complaints
were not pending at the time that the class entered into the settlement
agreement, and consequently, the Commission finds Section 20.1 to be
inapplicable to complainant's complaints.
The Commission also finds Section 21.1 to be inapplicable to claims 1,
2, and 3. Section 21.1 applies to individual claims of discrimination
relating to sexual harassment or retaliation for EEO activity related to
sexual harassment that arose on or after February 1, 1994. The RIF to
which complainant was subjected became effective on October 15, 1993.
Complainant was reassigned to the Inyo National Forest, which was not
a career ladder position, effective December 1, 1993. As claims 1, 2,
and 3, arose prior to February 1, 1994, Section 21.1 is inapplicable to
claims 1, 2, and 3.
Finally, pursuant to Section 21.7 of the settlement agreement, the agency
shall dismiss complaints where the alleged discriminating conduct is
outside the class period. The class period is between February 1, 1994,
and February 6, 2001. Claims 1, 2, and 3 all arose prior to February 1,
1994, and therefore, are outside of the class period.
Claims 1, 2 and 3 do not meet any of the exceptions to Section 3.3
contained in Sections 20 and 21. Therefore, we find that claims 1, 2,
and 3 are properly barred pursuant to the February 6, 2001 settlement
agreement, and have been appropriately dismissed by the agency.
In its final decision, the agency also dismissed claims 4, 5, 6, 7,
and 8. The agency dismissed these claims, pursuant to 29 C.F.R. �
1614.107(a)(2), because they raise matters that have not been brought
to the attention of an EEO Counselor, and, they are not like or related
to matters that have been brought to the attention of an EEO Counselor.
Although we find that the agency properly dismissed claims 4, 5, and 6,
pursuant to 29 C.F.R. � 1614.107(a)(2), we find that the agency improperly
dismissed claims 7 and 8, pursuant to 29 C.F.R. � 1614.107(a)(2).
In its decision, the agency concluded that complainant did not raise any
of the issues raised in claims 4, 5, 6, 7, and 8, in EEO Counseling.
The agency further provides a notation in a forwarded electronic mail
message (e-mail) from the EEO Counselor that states that complainant did
not raise any issues with the EEO Counselor regarding the Inyo National
Forest or her resignation from the job. Complainant has raised no new
contentions on appeal regarding the dismissal of claims 4, 5, 6, 7, and 8.
There is no indication in either the EEO Counselor's report or elsewhere
in the record, that complainant raised the issues described in claims 4,
5, and 6, with an EEO Counselor. Claims 4 and 5 are not like or related
to the matters raised with an EEO Counselor and complainant has not argued
on appeal that they are so related. Therefore, we find that the agency
properly dismissed claims 4 and 5 pursuant to 29 C.F.R. � 1614.107(a)(2).
The Commission finds that claim 6 fails to state a claim independent of
the other claims in the complaint, because it is too generalized a claim.
Therefore, we find that claim 6 is properly dismissed for failure to
state a claim pursuant to � 1614.107(a)(1).
There is, however, a description by the EEO Counselor in her revised
report under the heading, �Facts Developed in the Inquiry,� that states,
�She [complainant] was frustrated with her Inyo position and resigned.
She has since moved to Ely, Nevada, and works as a seasonal dispatcher.
She does not like her job at all. She believes if she had not been
forced to leave Sequoia, she would have continued to have a successful and
rewarding career.� Therefore, we find that complainant did raise with the
EEO Counselor, the issue of quitting her job at the Inyo National Forest,
as described in claim 7. Additionally, we find that claim 8, which
alleges that complainant's supervisor convinced her to change her reason
for quitting her job at the Inyo National Forest, is like or related
to claim 7. Therefore, we find that claims 7 and 8 were improperly
dismissed by the agency, pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency's decision dismissing claims 1, 2, 3, 4, 5, and 6,
of complainant's consolidated complaints, is AFFIRMED. The agency's
decision dismissing claims 7 and 8 of complainant's consolidated
complaints is REVERSED. Claims 7 and 8 are REMANDED to the agency for
further processing in accordance with this decision and 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 (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
December 18, 2002
__________________
Date
1In its final decision and in other
documentation contained in the record, the agency claims that complainant
filed Agency No. R5SA008 on June 14, 2001. The complaint is dated January
17, 2001. There is no certified receipt or postmark contained in the
file, indicating the date on which the complaint was actually filed;
however, complainant has not disputed this filing date on appeal or
elsewhere in the record. Therefore, the Commission accepts June 14, 2001,
as the filing date for Agency No. R5SA008, which has been consolidated
with Agency No. R5SA048, filed on September 24, 2001.
2Red card qualifications relate to an employee's qualification to be
assigned fire fighting duties.
3Dan Glickman, Secretary, U.S. Department of Agriculture, Defendant.
4Complainant does not contest the agency's assertions that she
was a member of the class covered by the settlement agreement. The
correspondence contained in the record from the attorney representing the
class, as well as the complaint form dated January 17, 2001, indicates
that complainant was a member of the class.