Melissa S. Khemmanivanh, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 3, 2009
0120091059 (E.E.O.C. Jun. 3, 2009)

0120091059

06-03-2009

Melissa S. Khemmanivanh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Melissa S. Khemmanivanh,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091059

Agency No. 1E-801-0103-08

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated December 16, 2008, dismissing her complaint of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission

finds that complainant's complaint was improperly dismissed pursuant to

29 C.F.R. � 1614.107(a).

During the pertinent period, complainant was employed as a Mail Handler

at a Colorado facility of the agency. On September 2, 2008, complainant

initiated contact with an EEO Counselor alleging that the agency

discriminated against her on the bases of national origin (Laotian),

sex (female), and disability (migraines) when, since February 2008,

management has subjected her to a hostile work environment regarding

her request for leave under the Family & Medical Leave Act (FMLA). In a

formal EEO complaint dated November 14, 2008, complainant reiterated the

same claim of harassment. To support her claim, complainant alleged

that she had to attend FMLA evaluations unnecessarily on February 27,

March 26, and July 14, 2008; management subjected her to disciplinary

action for leave violations on August 6, 2008; and management subjected

her to adverse actions in nearly all aspects of her FMLA request.

In its final decision, the agency dismissed complainant's claim pursuant

to 29 C.F.R. �� 1614.107(a)(1) & (2), for failure to state a claim and

untimely EEO Counselor contact respectively. Specifically, the agency

stated that the portion of the claim regarding "nearly all aspects" is

too vague. Further, the agency stated that complainant failed to mention

the disciplinary action and various adverse actions in her pre-complaint,

and did not include them until her formal complaint, which renders

her contact untimely. The instant appeal from complainant followed.

On appeal, complainant stated that the EEO Counselor failed to help her

frame her claim properly and that she initiated EEO contact within 45

days of when she received the August 6 disciplinary action.

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,

that the agency shall dismiss a complaint or a portion of a complaint

that fails to comply with the applicable time limits contained in

� 1614.105, unless the agency extends the time limits in accordance

with � 1614.604(c). Regulation 29 C.F.R. � 1614.105(a)(1) provides

that an aggrieved person must initiate contact with an EEO Counselor

within forty-five (45) days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within forty-five

(45) days of the effective date of the action.

A complainant alleging a hostile work environment will not be time barred

if all acts constituting the claim are part of the same unlawful practice

and at least one act falls within the filing period. See National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). In the

case at hand, we find that complainant alleged hostile work environment

harassment when she initiated contact with an EEO counselor on September

2, 2008, and that she later provided her August 6, 2008 letter of warning,

an actionable claim, as evidence to support her claim of harassment.

Also, we find that complainant alleged the various FMLA evaluations and

adverse actions to support her claim further. We find that the August

6 letter of warning falls within the 45-day filing period and renders

timely complainant's claim of harassment, inclusive of the remaining

FMLA-related incidents cited. Upon careful review of the record and

based on the above, the Commission REVERSES the agency's final decision

and REMANDS it consistent with this decision and the Order below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with

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. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant 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 complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant 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 (K1208)

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 77960, Washington,

DC 20013. 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 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) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 77960,

Washington, DC 20013. 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 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

June 3, 2009

__________________

Date

2

0120091059

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091059