01982664
03-25-1999
Viola K. Cooper, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Viola K. Cooper, )
Appellant, )
)
v. ) Appeal No. 01982664
) Agency No. 970094R9
Carol M. Browner, )
Administrator, )
Environmental Protection Agency, )
Agency. )
______________________________ )
DECISION
Based on a review of the record, we find that the agency improperly
dismissed appellant's complaint, pursuant to EEOC Regulations 29
C.F.R. �1614.107(a) and (b), for failure to state a claim and for failure
to contact an EEO counselor within 45 days of the alleged discrimination.
Appellant alleges discrimination on the bases of race (Asian) and reprisal
(prior EEO activity).
The agency dismissed two allegations regarding the denial of travel
funds because of untimely EEO counselor contact. However, on appeal,
the appellant states that she never raised either of these matters
as allegations in her complaint, and only provided them as background
information. Therefore, the issue of whether or not the agency properly
dismissed these matters is not in contention and will not be further
addressed in this determination.
The agency also dismissed two allegations identified in the final agency
decision (FAD) as (3) and (4). In allegation 3, the appellant contends
that she applied for a detail to a position in the Community Involvement
Office of the agency. During the selection process, a personnel specialist
divulged her �EEO history� to the Division Chief of that Office, as
well as to the selecting official for the position. Moreover, appellant
was required to provide a full explanation of the circumstances of her
prior EEO complaint as a condition for consideration of her application.
In allegation 4, the appellant contends that after she was selected
for the detail, the Assistant Regional Administrator delayed releasing
her from her current job assignment for one month. It is the agency's
view that appellant has failed to state a claim because she is not an
�aggrieved employee� with respect to either of these allegations.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
With respect to allegation 3, appellant asserts that she was very
uncomfortable during her job interview when she was required to describe
the circumstances of a prior EEO complaint in order to be considered for
the position. Specifically, she was dismayed that the selecting official
had been informed about the complaint and that she was forced to provide
an explanation. She indicates that the prior complaint dealt with a claim
of sexual harassment, and describing the circumstances was humiliating.
Notwithstanding the fact that appellant was selected for the position
in question, she contends that she was treated differently than other
applicants because she was required to satisfy �concerns� regarding her
prior EEO complaint in order to be considered for the position.
We find that the appellant is an �aggrieved employee� within the meaning
of the law and regulations cited above. It is clear that a �term,
condition, or privilege of employment� was adversely impacted when
she was forced to explain the circumstances of a prior EEO complaint
during the interview in question. Her selection for the position in no
way diminishes the harm she experienced during the selection process.
Moreover, as a matter of policy, to allow applicants to be questioned
about prior EEO complaints during job interviews would create a chilling
effect on the EEO process. Therefore, we find that the agency's dismissal
of allegation 3 was improper. George v. U.S. Postal Service, EEOC Request
No. 05980451 (October 8, 1998).
As to allegation 4, we also find that the one month delay in releasing the
appellant to the detailed position constitutes harm to a �term, condition,
or privilege of employment� within the meaning of the law and regulations
cited above. For that month period, appellant worked under conditions in
which she was uncertain and required to investigate the circumstances of
the delay, eventually resorting to the EEO process. In fact, the Regional
Administrator approved appellant's release only when she learned that
the appellant contacted an EEO counselor about the matter. Therefore,
we find that the agency's dismissal of allegation 4 was improper.
On appeal, appellant contends that two of the allegations stated in her
complaint were not considered by the agency. A review of the appellant's
formal complaint confirms that both of the following allegations were
presented: (1) appellant's new supervisor was �warned� about her �EEO
history�; and (2) the detailed position was changed from permanent
to temporary.
In its statement on appeal, the agency argues that the above allegation
1 is really part of allegation 3, which was considered and rejected for
failure to state a claim. However, we find that informing appellant's
new supervisor about the EEO activity is not related to the facts alleged
in allegation 3, except that it is the same personnel specialist who is
alleged to have divulged the information. Allegation 3 concerned the
selection process only, while allegation 1 focuses on the alleged harm
after appellant's selection and while performing in her new position.
Therefore, this allegation must be addressed in a FAD by the agency.
Additionally, with respect to allegation 2, we do not agree with the
agency that it is moot. Our review of the record fails to reveal any
official personnel documents to substantiate the agency's determination
that the detailed position in question was temporary from the beginning.
Consequently, further investigation is required by the agency to obtain
and review the pertinent personnel documentation and to then address
this allegation in a FAD accordingly.
Therefore, we VACATE the FAD and REMAND the allegations to the agency
in accordance with this decision and the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant.
If the agency does not comply
with the Commission's order, the appellant may petition the Commission
for enforcement of the order. 29 C.F.R. �1614.503(a). The appellant
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. ��1614.408, 1614.409, and 1614.503(g).
Alternatively, the appellant 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. ��1614.408 and 1614.409.
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 appellant files a civil action, the administrative
processing of the complaint, including any petition for enforcement,
will be terminated. See 29 C.F.R. �1614.10.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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.F.R.).
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:
March 25, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations