0120110053
02-18-2011
Mary Greenlief, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Mary Greenlief,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110053
Agency No. 200P-0654-2010103232
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated August 13, 2010, dismissing her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of the events giving rise to her complaint, Complainant was a
Medical Records Clerk with the Veterans Affairs Sierra Nevada Healthcare
System in Reno, Nevada. In her complaint Complainant alleged that the
Agency subjected her to harassment when:
1. on May 17, 2010, she was issued a proposed admonishment by her
supervisor;1
2. on May 17, 2010, she was charged with absence without leave (AWOL);
3. on May 18, 2010, her supervisor yelled at her from the doorway,
telling her to read her email before going home;
4. at unspecified times she was instructed not to use her cell phone at
work;2
5. on June 8, 2010, she was told by her supervisor that she had to scan
200 documents a day; and
6. in June 2010, she was taken off scanning duties, and given a telephone
assignment.
Complainant did not identify a basis of discrimination in her complaint,
such as sex, age and disability, and according to the counselor's report,
she did not identify a basis of discrimination with the EEO counselor.
The Agency dismissed the complaint for failure to state a claim.
29 C.F.R. � 1614.107(a)(1). It reasoned that Complainant did not cite
a basis of discrimination covered by Title VII, the Rehabilitation Act,
or the ADEA.
An Agency Initial Contact and Interview sheet dated May 20, 2010,
indicates that in Complainant's initial contact with the Agency's EEO
office, she identified her bases of discrimination as age (75) and
disability (diabetic and kidney).
CONTENTIONS ON APPEAL
Complainant writes that she is alleging discrimination based on sex
(female), age, nationality (unidentified) and disabilities, and the
harassment by her supervisor is ongoing. In opposition to the appeal,
the Agency argues that Complainant did not raise a covered basis of
employment discrimination with the EEO counselor or in her complaint, and
absent a basis, there is no way for it to determine whether Complainant
stated a claim.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Here, based on our review of the Agency Initial Contact and Interview
sheet dated May 20, 2010, and the appeal, we find that Complainant
is raising the bases of sex (female), age (75), national origin
(unidentified), and disability (diabetic, kidney), bases covered by
the Rehabilitation Act and the ADEA. It is permissible for us to
find Complainant is alleging these bases of discrimination. Sanchez
v. Standard Brands, Inc., 431 F.2d 455, 462-466 (5th Cir. 1970) (failure
to check box on a complaint form signifying a basis of discrimination
does not preclude a claim on that basis being raised later). Accordingly,
this reason for the dismissal is REVERSED.
Ruling that Complainant's complaint did not raise a basis of
discrimination covered by an employment discrimination statute, the
Agency did not go on to make a decision on what claims were otherwise
subject to dismissal or acceptance for investigation.3
The FAD is VACATED, and the Agency shall comply with the Order below.
ORDER
The Agency is ordered to take the following remedial action:
The Agency shall review the complaint, as clarified in this decision,
including footnote 1, for acceptance/dismissal, and then process it
in accordance with 29 C.F.R. Part 1614.4 In so doing, it shall give
Complainant an opportunity to clarify the bases of discrimination she
is alleging, e.g., what is her national origin, which disabilities is
she raising? The Agency shall issue the acceptance and/or dismissal
letter within 45 calendar days of its receipt of this decision.
A copy of the Agency's acceptance and/or dismissal letter 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
February 18, 2011
__________________
Date
1 By letter dated June 3, 2010, the Agency sustained the proposal, and
officially reprimanded Complainant. The Agency advised in the letter that
the reprimand would be placed in Complainant's official personnel file.
The proposed admonishment merges into the official reprimand, making
the later covered by the complaint.
2 In its FAD, the Agency captured this claim as happening up to and
including May 2010. Complainant did not specify dates.
3 For example, the Agency noted that it appeared a grievance may have
been filed on one or more of the events, but did not rule on whether
this was a grounds for dismissal.
4 Based on our review of the record, we find Complainant is alleging
discrimination based on her sex (female), age (75), national origin
(unidentified), and disability (diabetic, kidney).
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0120110053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110053