01982749_r
03-26-1999
Reba E. Modena, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Reba E. Modena, )
Appellant, )
)
v. ) Appeal No. 01982749
) Agency No. BKEQFO9801I0020
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On March 4, 1998, appellant filed a timely appeal with this Commission
from a February 2, 1998 final agency decision (FAD), pertaining to
her complaint of unlawful employment discrimination in violation of
�501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. In her complaint, appellant alleged that she was subjected to
discrimination on the bases of physical disability (injured right arm)
and in retaliation when:
On September 24, 1997, appellant received a Decision Day suspension to
decide whether she would be able to continue her employment;
On October 1, 1997, appellant signed an Employee Decision and Commitment
Letter because she was told that she must sign the letter and abide by
its terms, or resign;
Appellant was the only manager with a dress code;
Appellant was paid less than any other management employees, and had
not received a raise despite promises to the contrary; and
On October 21, 1997, appellant received a letter of separation, effective
November 3, 1997.
The agency dismissed allegations (1) - (4) pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim, and dismissed
allegation (5) pursuant to EEOC Regulation 29 C.F.R. �1614.107(d),
for raising the same claim previously settled in a grievance
proceeding. Specifically, the agency found that allegation (1) did not
state a claim because the Decision Day action did not adversely affect a
term, condition, or privilege of her employment. According to the agency,
the Decision Day suspension merely gave appellant the opportunity to
improve her performance and appearance before any adverse action was taken
against her. The agency also notes that the Decision Day action was given
after appellant received a Caution Memo September 8, 1997. Similarly,
allegation (3) was dismissed because it did not involve an adverse action,
and allegation (2) was found to cause no harm because appellant �did sign
the letter and therefore did not suffer any loss in pay or benefits.�
The agency dismissed allegation (4), because appellant was aware of the
terms and conditions of her position when she accepted the agency offer
of employment, and because the agency's mere words (promise of raise)
were not enough to render appellant aggrieved. The agency found that
a grievance had been filed regarding her termination in allegation (5),
and a final decision had been issued on the matter. The agency reasoned
that appellant chose to pursue her discrimination allegation through the
grievance process when she agreed, in settlement of the grievance, to two
(2) additional weeks of paid leave before her termination took effect.
Finally, the agency dismissed appellant's basis of retaliation because
she had no prior EEO activity.
A review of the record reveals that appellant also alleged in her
formal complaint that she was being harassed by her business manager.
Specifically, appellant complained that every time she told her employees
to do something, the business manager would change her orders, and that
the business manager often called appellant into her office to scold
her. The Counselor's Report includes several notes from appellant,
listing various problems that she has had with the business manager.
The agency's final decision does not address this issue.
The record contains a copy of the September 24, 1997 Decision Day
letter, and the October 1, 1997 Employee Decision and Commitment
letter. The Decision Day letter informed appellant that she was
being given one day off to decide the status of her future employment.
It noted appellant's deficient performance and professional appearance.
The Decision Day letter also threatened that any failure to adhere to
performance and professional standards for twelve months �following this
decision� may result in appellant's immediate termination.
The Employee Decision and Commitment Letter appears to memorialize the
standards appellant would be required to meet. It stated that failure to
follow its standards �will result in immediate termination.� Appellant
signed the Employee Decision and Commitment letter, i.e., agreed to its
terms, because her only other option was resignation, as evinced by the
first line of the letter, which states, �I have decided to keep my job.�
The record also contains a letter dated November 3, 1997, referring to
appellant's grievance on her separation; determining that the separation
was justified for business reasons; and approving an extension of
appellant's original separation date to December 5, 1997. We note,
however, that a copy of the collective bargaining agreement is not
contained in the record.
ANALYSIS AND FINDINGS
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).
First, an allegation must be within the purview of the EEO process,
meaning that the complainant must allege employment discrimination on
a basis set forth in one of the statutes enforced by the Commission.
Cartrett v. United States Postal Service, EEOC Request No. 05950744
(Feb. 8, 1996). Then, to state a claim under the Commission's
regulations, a complainant must show an �injury in fact.� Diaz, EEOC
Request No. 05931049 (citing Hackett v. McGuire Bros., 445 F.2d 447
(3rd Cir. 1971).
Despite appellant's retention of all pay and benefits during her
Decision Day action, appellant has been rendered aggrieved by the action.
See Pasatiempo v. Department of Navy, EEOC Appeal No. 01980893 (Oct. 16,
1998) (holding that employee placed on administrative leave, while
retaining full pay and benefits, to contemplate his proposed removal,
was sufficiently aggrieved to state a claim). Because appellant has
alleged that the adverse action was based on a disability, she has raised
an allegation within the purview of the EEOC regulations. Accordingly,
appellant stated a claim and the agency's dismissal of allegation (1)
is REVERSED.
Allegation (2) states a claim for similar reasons. The Commission finds
that the Employee Decision and Commitment Letter altered the terms,
conditions, and privileges of her employment by, in effect, guaranteeing
appellant that her failure to meet all standards would result in immediate
termination. Because appellant has alleged that the adverse action was
based on a disability, she has raised an allegation within the purview
of the EEOC regulations. Consequently, the agency's decision to dismiss
allegation (2) is REVERSED.
Regarding allegation (3), the disparate application of a dress code
states a claim. See Renteria v. United States Postal Service, EEOC Appeal
No. 01961122 (Nov. 8, 1996); Rappleyea v. United States Postal Service,
EEOC Appeal No. 01951469 (Sept. 1, 1995) (claimant alleging that dress
code is only enforced against her states a claim); Parisot v. Treasury,
EEOC Appeal No. 01941601 (Nov. 23, 1994). Therefore, the agency's
decision to dismiss allegation (3) is REVERSED.
In its analysis of allegation (4), the agency failed to properly
characterize the allegation. Appellant in essence claims that she was
entitled to a raise, and did not receive one although similarly situated
managers were paid more. Therefore, the Commission construes allegation
(4) as stating that the agency failed to award appellant a raise because
of her physical disability. As defined herein, allegation (4) states a
claim within the purview of the EEOC regulations. See Davis v. Navy,
EEOC Appeal No. 01973974 (Jan. 23, 1998) (finding that allegation
in which complainant alleges that she had been promised a raise, but
had not received any pay increases, states a claim). Accordingly, the
Commission finds that allegation (4) states a claim, and the agency's
dismissal of the allegation is REVERSED.
EEOC Regulation 29 C.F.R. �1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. �7121(d) and is covered by a
collective bargaining agreement that permits allegations of discrimination
to be raised in a negotiated grievance procedure, a person wishing to file
a complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614, irrespective
of whether the agency has informed the individual of the need to elect,
or whether the grievance has raised an issue of discrimination.
The agency has provided no evidence of a collective bargaining agreement
permitting allegations of discrimination to be raised, and absent such
proof, an allegation cannot be dismissed for having been the subject
of a negotiated grievance process. Therefore, the agency's dismissal
of allegation (5) pursuant to EEOC Regulation 29 C.F.R. �1614.107(d)
is REVERSED.
The Commission notes that the agency failed to address appellant's
allegation concerning harassment from her business manager; the Commission
deems the agency's action to be tantamount to a dismissal of that matter.
Specifically, appellant alleges that the business manager undermined
appellant's supervisory authority, and frequently called appellant
into her office to scold her. Appellant's submissions on appeal reveal
that the EEO Office was notified of the issue by the counselor's review
of appellant's notes attached to the Counselor's Report, and appellant
referenced the matter in her formal complaint. Accordingly, the agency's
dismissal of appellant's allegation of harassment is REVERSED.
EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least forty years of age), the
Rehabilitation Act (discrimination based on the basis of disability),
or the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. �2000e et seq.), the Equal Pay Act or for participating in
any stage of administrative or judicial proceedings under these statutes.
The Commission finds no evidence to indicate that appellant engaged in
prior EEO activity. Accordingly, the agency's dismissal of appellant's
basis of reprisal is AFFIRMED.
CONCLUSION
Accordingly, the agency's final decision is MODIFIED. The decision to
dismiss allegations (1) -(5) and the allegation of harassment is REVERSED.
Allegations (1)-(5) and the allegation of harassment are REMANDED for
further processing in accordance with the Order below. The dismissal
of the basis of reprisal is AFFIRMED.
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. �1614.410.
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(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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).
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 26, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations