Lakshmi M. Kumar, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 22, 1999
01990992 (E.E.O.C. Sep. 22, 1999)

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