01990992
09-22-1999
Lakshmi M. Kumar, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Lakshmi M. Kumar v. Department of the Army
01990992
September 22, 1999
Lakshmi M. Kumar, )
Appellant, )
)
v. ) Appeal No. 01990992
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On July 24, 1998, appellant filed a formal complaint alleging that
she was subjected to discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. on
the bases of her race (Asian) and national origin (India). Therein,
appellant contends, inter alia, that during and after a reorganization
of her department, appellant was denied career progression, appellant
suffered from threats and harassment from supervisors and co-workers,
appellant's supervisors misled the Process Action Team (PAT) to believe
that appellant's functions would be moved to another organization in
order to prompt the deletion of appellant's position, appellant was
not selected for a FAP Prevention Coordinator (GS-101-09) position,
and supervisors attempted to move appellant into an "overhire" position
when they discovered that appellant had seniority over her co-workers.
By letter dated August 17, 1998, appellant was instructed to clarify and
modify her complaint. Consequently, appellant filed an amended formal
complaint dated August 25, 1998, in which appellant alleged her position
was abolished because the functions of her position were being moved to
another department, but the functions of her position remained in her
department; no attempt was made to place appellant in any of several
open, in-grade positions for which she would be qualified; appellant was
offered a lower grade position, without being given any other options;
co-workers barged into appellant's office during a private closed-door
meeting; and junior staff were assigned to act as appellant's supervisor
during the supervisor's absence.
The agency sent appellant a notice, dated September 29, 1998, that her
complaint had been received. The notice defined appellant's allegations
as follows: appellant was subjected to an unlawful organization
procedure and believed that she would be denied employment and career
progression. The notice allowed appellant to respond within five days if
she disagreed with the agency's definition of her complaint. By letter
also dated September 29, 1998, the agency issued appellant a final agency
decision (FAD) accepting her allegation regarding the organization
procedure, but dismissing a harassment allegation pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for failure to bring the matter to the
attention of an EEO Counselor. The agency also dismissed an allegation
concerning the improper processing of appellant's complaint pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, appellant disputed the EEO Officer's refusal to accept
her complaint as outlined in her nine-page attachment to her complaint
and, instead, required her to shorten the complaint. The agency noted
that appellant was referred to the EEO office when she first raised her
dispute with the processing of her complaint.
Appellant disputed the definition of her allegations, and thereafter
received another notice defining her allegations, and another FAD,
both dated October 14, 1998. The October 14, 1998 documents, however,
were identical to their September 29, 1998 counterparts. On November 14,
1998, appellant filed a timely appeal from the October 14, 1998 FAD.
On appeal, appellant reiterates that the agency refused to process
appellant's July 24, 1998 complaint because it was too long, and
therefore, required appellant to file a condensed complaint. Appellant
contends that, despite her repeated protests, the agency failed to
identify several of her allegations, including that: appellant was
denied any and all opportunities for career progression; appellant was
on the verge of losing her job; appellant was subjected to harassment
and threats from co-workers and supervisors; appellant was subjected
to a hostile work environment marked by an excessively high work load,
and undue harassment/abuse from her co-workers and supervisors; and
management did nothing to alleviate appellant's hostile work conditions
despite being notified of the problem by appellant on several occasions.
Appellant contends that all of her allegations were discussed with the
EEO Counselor.
The Counselor's Report, dated October 13, 1998, includes, inter alia,
discussions of appellant being required to take an overhire position,
appellant being subjected to verbal abuse and harassment from co-workers
and supervisors, and appellant being given no help from management when
she informed them of harassment from co-workers.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995).
Concerning appellant's allegation of hostile work environment harassment,
the Commission finds that the matter clearly was included in the
Counselor's Report. Therefore, the agency's dismissal of appellant's
harassment allegation for failure to raise the matter with her EEO
Counselor was improper.
Regarding appellant's dissatisfaction with the processing of her pending
complaint, the Commission has held that an allegation which relates
to the processing of a previously filed complaint does not state an
independent allegation of employment discrimination. See Kleinman v.
U.S. Postal Service, EEOC Appeal No. 05940579 (September 22, 1994);
Story v. U.S. Postal Service, EEOC Appeal No. 01965883 (March 13, 1997).
If a complainant is dissatisfied with the processing of her pending
complaint, she should be referred to the agency official responsible for
the quality of complaints processing. Agency officials should earnestly
attempt to resolve dissatisfaction with the complaints process as early
and expeditiously as possible. See EEO MD 110 (4-8). Furthermore, we
note that the agency indicated that appellant was properly referred in the
present case. Consequently, the agency properly dismissed appellant's
allegation of improper processing pursuant to 29 C.F.R. �1614.107(a).
Finally, the Commission finds that the remaining allegations raised by
appellant on appeal, i.e., appellant being denied career progression
and being on the verge of losing her job, are general themes, not
specific allegations. Further, the Commission finds that these themes
are adequately represented by the accepted allegation. Accordingly, the
agency properly refused to define these matters as separate allegations
of discrimination.
CONCLUSION
Accordingly, the agency's dismissal of appellant's allegation of
harassment is REVERSED, and the harassment allegation is REMANDED for
further processing. The agency's dismissal of appellant's improper
processing allegation is AFFIRMED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 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. 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:
September 22, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations