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