05980923
07-30-2001
Pok Su Determan, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Pok Su Determan v. Department of the Navy
05980923
July 30, 2001
.
Pok Su Determan,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05980923
Appeal No. 01961521
Agency Nos. 93-68711-002; 94-68711-002; 94-68711-006
Hearing Nos. 340-94-3355X; 340-94-3586X; 340-94-3814X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Pok Su
Determan v. Department of the Navy, EEOC Appeal No. 01961521 (June
5, 1998). EEOC Regulations provide that the Commission may, in its
discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant was employed as a Procurement Technician, GS-06, at the
Resident Office in Charge of Construction, Camp Pendleton, California.
In her discrimination complaints, complainant alleged that she was
discriminated against on the bases of national origin (Korean) and
reprisal prior EEO activity) in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant alleged she was: (1) discouraged from filing a discrimination
complaint on February 9, 1993; (2) impeded in processing her Equal
Employment Opportunity (EEO) charges between February 9, 1993, and June
10, 1994; and (3) subjected to harassment and disparate treatment between
February 9, 1993, and June 10, 1994.
Complainant requests reconsideration of the appellate decision, arguing
that: (1) a co-worker (CW) subjected her to harassment and a hostile work
environment in retaliation for her EEO activities and that the agency
failed to stop the misconduct; and (2) her supervisor instructed her to
keep her complaints within the chain of command and thus directed that
she not complain to the agency EEO office about EEO matters.
With respect to the first argument, the Commission's Administrative Judge
(AJ) found that although the environment was �hostile,� the hostility
was, more often than not, caused by complainant's actions and reactions
to the events which occurred between February of 1993 and June of 1994.
Specifically, the AJ found that complainant's threatening remarks to CW
and insubordinate behavior toward her supervisor by refusing to assist
another co-worker when specifically requested to do so, as well as
her constant surveillance of CW's comings and goings, contributed to
making the environment hostile. On this basis, the AJ concluded that
the actions were motivated by personal animus toward complainant, and
not discriminatory animus on the basis of national origin or retaliation.
The appellate decision found that there was ample evidence in the
record for the AJ to conclude that complainant was not subjected to a
hostile environment due to her national origin or in reprisal for her
EEO activity. The appellate decision saw no basis to disturb the AJ's
findings of no discrimination, which were based on a detailed assessment
of the credibility of witnesses.
Complainant has failed to directly address the appellate decision's
and the AJ's analysis and findings of fact, especially concerning
complainant's role in the alleged hostile work environment. The AJ's
Findings of Fact more specifically point to an incident on February 18,
1993, in which CW reported complainant to complainant's supervisor for
doing non-government work (school homework) on government time, resulting
in a verbal reprimand of complainant. At that time, CW testified she
did not know that complainant had filed an EEO complaint. Tr. 353,
357, 375. The AJ found that prior to the February 18, 1993 incident,
complainant and CW were friendly, but their relationship changed after
the February 18, 1993 incident. Finding of Fact 54. The AJ's Findings
of Fact reiterate in considerable detail the widespread tension in the
office, emanating from complainant, after the February 18, 1993 incident.
See, e.g., Findings of Fact 55-67. While it is undisputed that CW
made snide comments about complainant, the AJ found that complainant's
supervisor told CW not to make such comments. Finding of Fact 68. See
also Findings of Fact 70, 73 (CW admonished by her supervisor for making
certain statements about complainant).
Secondly, complainant submits that in May 1994, her supervisor instructed
her to keep her complaints within the chain of command and thus directed
that she not complain to the agency EEO office about EEO matters.
The focus is on a May 24, 1994, memorandum to complainant from her
supervisor, in which the supervisor indicated dissatisfaction with the
fact that complainant spoke with another management official about her
(complainant's) concerns with sick leave.<1> In a response memorandum,
complainant stated her understanding that if she felt she was not being
treated fairly, she should keep her complaints in the chain of command,
and that if there was a misunderstanding, complainant requested to
be advised. The supervisor never replied.
Under the above circumstances, we do not find reconsideration justified.
The supervisor's memorandum related to matters of sick leave. The fact
that the supervisor did not reply to complainant's response memorandum
need not be taken as direction that EEO complaints were only to be taken
through the chain of command. It would not have been unreasonable for
complainant to have asked for additional clarification if she indeed
thought she was in any way prohibited from taking her EEO concerns to
the EEO office.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01961521 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 30, 2001
Date
1 The pertinent language of the memo stated:
I understand that you may have questions about the sick leave procedures
especially since apparently this is the first time you were made aware
of them. However, I believe your method of handling the situation
was inappropriate because you impacted other peoples' time - the
Administrative Area Head, the ROICC Contracts
Area Head (who was conducting the meeting), other employees who were at
the meeting, and myself.