01981808
02-17-2000
Sirelda Alvarado-Embade, Complainant, v. Aida Alvarez, Administrator, Small Business Administration,) Agency.
Sirelda Alvarado-Embade v. Small Business Administration
01981808
February 17, 2000
Sirelda Alvarado-Embade, )
Complainant, )
)
v. ) Appeal No. 01981808
) Agency No. 05-97-609
Aida Alvarez, )
Administrator, )
Small Business Administration,)
Agency. )
______________________________)
DECISION
The Commission finds that the agency erred in its December 2, 1997
decision dismissing a portion of Complainant's complaint for untimely
EEO counselor contact, failure to state a claim and because it raised
a matter already raised in a grievance procedure, and alleging that a
proposed action is discriminatory, pursuant to 64 Fed. Reg. 37,644, 37656
(1999) (to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � � � �1614.107(a) (1), (2), (4) and (5).<1>
The record shows that Complainant sought EEO counseling on January 13,
1997, alleging that she had been discriminated against on the bases of
sex, disability and reprisal. Complainant filed a formal complaint
of discrimination consisting of nine claims. The agency accepted claims
(4), (5), (6) and (8). Although direct appeals of decisions partially
dismissing a complaint are no longer permissible under the regulations
revised on November 9, 1999, the agency has informed the Commission that
the accepted claims were the subject of an agency decision on February
24, 1999. Therefore, we shall consider the dismissed claims that are the
subject of the instant appeal because there are apparently no remaining
claims from the instant complaint pending anywhere in the administrative
EEO process.
The remaining claims of Complainant's complaint are the following:
whether Complainant was discriminated against on the bases of sex,
mental disability and reprisal when:
(1) she was transferred within one month to two different divisions on
or about February 5 and March 12, 1996;
(2) she was issued a written reprimand on May 7, 1996, related to an
incident in which she reported the alleged misuse of her government
parking space on April 12, 1996, to her Administrative Officer and
District Director;
(3) she was not interviewed by the District Director when her
recommendation for a promotion to the GS-1101-11 grade was made nor was
she congratulated nor informed of the approval or the effective date
for her promotion (these omissions took place sometime prior to October
27, 1996);
(7) a co-worker asked other employees about Complainant's whereabouts
during a period when this co-worker was not Complainant's supervisor
or Acting Team Leader;
(9) she received a letter from the Deputy District Director dated May 9,
1997, proposing to remove her from her position as Business Opportunity
Specialist, GS-1101-11.
Claims (1) - (3) and (7) were dismissed on the grounds of untimely EEO
counselor contact. Claims (3) and (7) were also dismissed for failure
to state a claim. Claim (2) was dismissed on the grounds that it raised
a matter already raised in a grievance. Claim (9) was dismissed on the
grounds that it raised a proposal to take a personnel action.
On appeal, Complainant contends that as an agency employee for over
18 years, with no prior conflicts or problems with the agency, she
did not realize that she was being discriminated against until she
lived through the events raised in all the claims of her complaint.<2>
Regarding claim (9), Complainant states that the letter of May 9, 1997,
must be considered as an additional element of the whole discriminatory
atmosphere that encompassed [her] final months at the [agency]" and
that "[A]ll these sporadic situations that were constantly arising,
every time with more frequency, constitute the complete discrimination
scenario . . . until she was finally terminated."
Concerning claims (1) - (3) and (7), we find that they were improperly
dismissed by the agency. The Commission applies a "reasonable suspicion"
standard to the triggering date for determining the timeliness of the
contact with an EEO counselor. Cochran v. United States Postal Service,
EEOC Request No. 05920399 (June 18, 1992). Under this standard,
the time period for contacting an EEO counselor is triggered when
the complainant should reasonably suspect discrimination, but before
all the facts that would support a charge of discrimination may have
become apparent. Id.; Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
Complainant's receipt of a $900.00 performance award in December 1996,
is indicative of Complainant's assertion that she did not suspect
unlawful employment discrimination until some time thereafter, i.e.,
when she contacted an EEO Counselor in January 1997.
Moreover, the agency also dismissed claims (3) and (7) for failure to
state a claim. We disagree. A review of the dismissed claims persuades
the Commission that they should have been accepted for investigation
because, when considered together and treated as true, these claims are
sufficient to state a claim either of disparate treatment or a hostile
or abusive work environment. See Cobb v. Department of the Treasury,
EEOC Request No. 05979977 (March 13, 1997).<3> Accordingly, claims
(1), (3) and (7) were improperly dismissed by the agency and are hereby
REMANDED to the agency.
Regarding claim (2), the record shows that the agency dismissed this claim
on the grounds that it had been raised in a prior grievance. Aside from
the agency's statement, no independent evidence of said grievance has
been provided to the Commission. Complainant claims that said claim
was not part of the grievance. Based on Complainant's arguments, we are
able to determine that a grievance was filed. However, without a copy
of said documents, we are unable to make a determination concerning the
claims raised in said grievance. Accordingly, claim (2) was improperly
dismissed by the agency and is hereby REMANDED to the agency.
Finally, claim (9) was dismissed on the grounds that it raised a proposal
to take a personnel action. We disagree. Complainant claims on appeal
that she was terminated from her position. The Commission has held
that when a complaint is filed on a proposed action and the agency
subsequently proceeds with the action, the action is considered to
have merged with the proposal. Charles v. Department of the Treasury,
EEOC Request No. 05910190 (February 25, 1991). Accordingly, claim (9)
was improperly dismissed and is hereby REMANDED to the agency.
The Commission hereby REVERSES the FAD's dismissal of claims (1), (2),
(3), (7) and (9) of Complainant's complaint for untimely EEO counselor
contact, failure to state a claim and for raising a matter already raised
in a grievance. Claims (1), (2), (3), (7) and (9) are hereby REMANDED
for further processing consistent with this decision and applicable
regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
February 17, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all Federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2 The record shows that Complainant was granted a $900.00 performance
award in December 1996.
3 In this case the Commission advised that (1) the ultimate merit of
the claims (whether they are true/whether discrimination has occurred)
may not be considered; and, (2) the complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the
complainant can prove no set of facts in support of the claim which
would entitle the complainant to relief.