01991394
10-14-1999
Minh Giang, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Minh Giang v. United States Postal Service
01991394
October 14, 1999
Minh Giang, )
Appellant, )
) Appeal No. 01991394
v. ) Agency No. 1-D-231-0133-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning 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. The appeal is accepted in
accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint on October 3, 1998, alleging
discrimination on the bases of race (Chinese Asian), color (yellow),
national origin (Chinese), sex (female), and reprisal when on June 1,
1998, appellant was harassed by her supervisor when the supervisor yelled
and screamed at her twice when she asked for high level forms.
In its FAD, the agency dismissed the complaint for failure to contact
an EEO Counselor in a timely manner. The agency found that the alleged
incident occurred on July 2, 1998, and that appellant contacted an EEO
Counselor on August 17, 1998. The agency found that appellant contacted
the EEO Counselor forty-six days after the incident. Therefore, the
agency dismissed appellant's complaint pursuant to 29 C.F.R. �1614.107(b).
This appeal followed.
ANALYSIS AND FINDINGS
Upon review of the record, we find that agency incorrectly found
that appellant failed to contact an EEO Counselor in a timely manner.
The EEO Counselor's report and appellant's complaint clearly indicate
that the alleged event occurred on June 1, 1998 and that appellant
contacted an EEO Counselor on July 2, 1998. EEOC 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.
Therefore, the Commission finds that appellant contacted an EEO Counselor
in a timely manner and that the agency incorrectly dismissed appellant's
complaint pursuant to 29 C.F.R. �1614.107(b).
Notwithstanding the agency's decision, the Commission finds that appellant
complaint is dismissed for failure to state a claim. EEOC Regulation
29 C.F.R. �1614.107(a) provides for the dismissal of a complaint or
portion thereof which fails to state a claim within the meaning of 29
C.F.R. �1614.103. 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;
�1614.106(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. Riden v. Department of the Treasury, EEOC Request
No. 05970314 (October 2, 1998).
In appellant's complaint, she asserts that the incident cited constitutes
harassment. In order to constitute a violation of Title VII, the
conduct must be "so objectively offensive as to alter the conditions of
the victim's employment." See Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors, EEOC Notice No.915.002
(June 18, 1999) (citing Oncale v. Sundowner Offshore Services, Inc., 118
S. Ct. 998, 1002 (1998)). Upon review of appellant's complaint, we find
that this incident which occurred on June 1, 1998, is not sufficient
to rise to the level to state a claim of harassment. Therefore, we
dismiss appellant's complaint for failure to state a claim, pursuant to
29 C.F.R. �1614.107(a).
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED albeit on different
grounds.
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 (R0993)
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. 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.
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:
Oct. 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations