01985681
03-20-2000
Hue Thi Nguyen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Hue Thi Nguyen v. United States Postal Service
01985681
March 20, 2000
Hue Thi Nguyen, )
Complainant, )
)
v. ) Appeal No. 01985681
) Agency No. 1J494003298
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 12, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to 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. <1> The agency
characterized complainant's complaint as alleging that she was subjected
to discrimination on the basis of race (Asian) when on March 31, 1998, she
was given a job discussion about talking to the union without permission.
In its June 17, 1998 FAD, the agency dismissed complainant's claim
pursuant to EEOC Regulations for failure to state a claim. Noting that
"[c]omplainant attempted to bring up an evaluation issue which [was]
the subject matter in another complaint," the agency also dismissed the
complaint for raising an issue previously filed. Specifically, the agency
determined that a discussion, unless documented, does not constitute a
sufficient injury to aggrieve an employee under Title VII. With regard
to the evaluation issue, the agency determined that complainant had
previously been issued her right to file a formal complaint regarding
that issue, but had failed to do so.
In her complaint, complainant asserts a number of allegations against
her supervisor, stating she filed her complaint because she, "could
not put up with this harassment any more." Specifically, complainant
claims that she was discriminated against on two separate evaluations by
being wrongly accused of being late from breaks and lunches, not meeting
expected speed levels, speaking to a Union steward without permission,
and not following supervisor's instructions. Complainant also contends
that she was assigned to push heavy containers as much as six times in two
weeks, when the normal rotation is once every three weeks. With regard
to this particular duty, complainant asserts that on March 5, 1998, when
she was three months pregnant, her supervisor refused her request to be
relieved from pushing a 500 lb. container when she experienced a severe
stomach cramp (an injury which eventually resulted in a miscarriage).
Complainant further claims that she was discriminatorily denied overtime
on March 30, 1998, and that as a result of her supervisor's instructions
she received a formal job "discussion" on March 31, 1998, with a threat
of a Letter of Warning for briefly speaking with a Union Steward about
non-union business. Additionally, apart from the alleged harassment,
complainant claimed that her EEO Counselor/Investigator asked her
to "withdraw" her previously filed EEO complaint, a complaint which
encompassed the allegations regarding her two evaluations. Finally,
on appeal, complainant also describes several additional incidents of
"supervisor's harassment" occurring after she filed her formal complaint.
First, with regard to the complainant's claims concerning her two
evaluations, we find that the agency improperly dismissed complainant's
claims for raising an issue which was previously filed. While the record
shows that complainant previously spoke with an EEO Counselor concerning
her evaluations, there is no evidence that she previously filed a formal
complaint regarding those claims.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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
22, 1994).
In her complaint and on appeal, complainant alleged a series of events
which occurred primarily in March 1998. Specifically, complainant
alleged that she was subjected to discrimination and harassment which
created a hostile work environment. Instead of treating these events
as incidents of the claim of harassment, however, the agency looked
only at one alleged incident concerning a formal job discussion. Thus,
the Commission finds that the agency improperly treated complainant's
complaint in a piecemeal fashion, when a fair reading of the record as
a whole, including her complaint, reveals that complainant is alleging a
pattern of ongoing harassment and a hostile work environment. See Drake
v. Department of the Air Force, EEOC Request No. 05970689 (March 29,
1999); Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994). Consequently, when complainant's claims are viewed
in the context of complainant's complaint of harassment, they state a
claim and the agency's dismissal of the complaint for failure to state
a claim was improper.
We note that on appeal, complainant asserts additional incidents of
agency harassment occurring after she filed her formal complaint.
Recently revised EEOC Regulation 29 C.F.R. � 1614.106(d) provides, in
pertinent part, that a complainant may amend a complaint at any time
prior to the conclusion of the investigation to include issues or claims
like or related to those raised in the complaint. Therefore, since
it appears that complainant would like to include additional incidents
of alleged harassment, she should be afforded the opportunity to amend
her complaint under the revised regulations. As such, the agency shall
notify complainant of the opportunity to amend her complaint under 29
C.F.R. � 1614.106(d) as outlined in the Order below.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. The case is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall notify complainant of the opportunity to amend
her complaint under 29 C.F.R. � 1614.106(d) to include new incidents of
harassment occurring since she filed her formal complaint. If complainant
wishes to amend her complaint to include new incidents of harassment
occurring since she filed her formal complaint, she shall notify the
agency of the amendments to her complaint within fifteen (15) calendar
days of her receipt of the agency's notification.
The agency shall process the remanded claims, along with any accepted
claims from provision (1) above, 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.
A copy of the agency's notice of the opportunity to amend the complaint
and the letter of acknowledgment to complainant 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 (M0300)
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); 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 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:
March 20, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On 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.