Maria M. Mendez, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 24, 2002
01A11013_r (E.E.O.C. Sep. 24, 2002)

01A11013_r

09-24-2002

Maria M. Mendez, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Maria M. Mendez v. Department of the Treasury

01A11013

September 24, 2002

.

Maria M. Mendez,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A11013

Agency No. 001231

DECISION

Complainant filed an appeal with this Commission from a final agency

decision of the agency pertaining to her complaint of unlawful

discrimination in violation of Title VII of the Civil Rights Act of 1964

(Title VII), as amended, 42 U.S.C. � 2000e et seq.

Believing that she was the victim of discrimination based on race and

national origin, complainant contacted the EEO office. Specifically,

complainant stated that she has been unsuccessfully attempting to

receive a promotion to the GS-1040-13 level over a two-year period.

The EEO Counselor's Report reflects that in April 1998, complainant

was promoted from a translator assistant position (GS-1046-7) to a

translator/interpreter position (GS-1040-9), as a result of a desk

audit. The EEO Counselor's Report (Report) further noted that two

years later, in April 2000, agency management requested another desk

audit for complainant. The Report indicated that complainant had been

�performing grade 13 work for two years.� Finally, the Report indicated

that the desk audit was denied by a Classification Specialist because they

purportedly could not approve another desk audit for the same employee.

On August 8, 2000, complainant filed a formal complaint that addressed

the matters for which she underwent EEO counseling, discussed above.

On October 10, 2000, the agency issued a decision dismissing the complaint

for failure to state a claim. The agency determined that complainant's

complaint was comprised of the claim that complainant was improperly

denied a desk audit, and dismissed the complaint for failure to state

a claim.

On appeal, complainant, argues that the agency improperly categorized

her complaint as addressing a denial of a desk audit. Complainant

argues that she is challenging management's failure to challenge her

initial audit to include a career ladder. Complainant explains that a

position description was originally prepared for her job with the title

Translator, GS-1040-9/11/12, but that when the audit was complete, her

position was changed to Translator, GS-1040-9, without the career ladder.

Complainant contends that she has been performing work at the GS-13

level without compensation, she has been consistently denied promotion

opportunities, and that management failed to take steps to remedy the

disparate treatment.

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. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

In the instant case, we find that complainant's claims have been

misdefined. While the denial of the second desk audit was apparently the

catalyst for the present complaint, complainant's claims of discrimination

involve her contention that she has been performing work at the GS-13

level, while only being compensated at the GS-9 level. This disparity

has allegedly been continuing for several years. Clearly, complainant

has identified a harm or loss to a term, condition, or privilege of

her employment; as she contends that this disparity is a result of

her race and national origin, she states a claim within the purview

of the regulations. Accordingly, the agency's decision to dismiss

the complaint for failure to state a claim was improper and is hereby

REVERSED. The complaint, as clarified 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 24, 2002

__________________

Date