Hue Thi Nguyen, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01985681 (E.E.O.C. Mar. 20, 2000)

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.