01980822
10-07-1998
Rosemary T. Huynh, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Rosemary T. Huynh, )
Appellant, )
)
v. ) Appeal No. 01980822
) Agency No. 97-1346
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On November 10, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on October 14, 1997,
pertaining to 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. In her complaint, appellant alleged that she
was subjected to discrimination on the basis of race (Chinese) when:
On June 5, 1997, appellant's supervisor threatened appellant that she
would be charged Absent Without Leave ("AWOL") if she did not start
her workday at 6:00 a.m. as scheduled;
On July 28, 1997, appellant was not selected for the position of Computer
Assistant, GS-335-07 under Vacancy Announcement Number NPB-97B0074B;
On September 10, 1997, management denied appellant's July 9, 1997 request
for a shadow assignment to a Customer Service Representative position;
Commencing in June 1997, appellant was subjected to continuous harassment
when coworkers made verbal remarks and innuendos, and left notes on
her desk;
Appellant was given limited training opportunities; and
On May 29, 1997, appellant received an annual performance appraisal
rating which was less than she felt she deserved.
On September 30, 1997, the agency sent appellant three (3) disposition
letters regarding her complaint. The first letter effectively dismissed
allegation (1) as being the subject of a settlement agreement signed
by the parties on July 25, 1997. The letter informed appellant that
if she believed that the agency failed to comply with the terms of the
agreement, she had to notify the agency's Director, Office of Equal
Opportunity Program in writing, within 30 days of when appellant knew
or should have known of the alleged noncompliance. The second letter
notified appellant that the agency accepted allegations (2), (3), and (4)
for investigation. In the final letter, the agency dismissed allegation
(5), pursuant to 29 C.F.R. �1614.107(b), for failure to initiate contact
with an EEO Counselor in a timely manner, and allegation (6), pursuant to
29 C.F.R. �1614.107(d), on the grounds that appellant raised the matter
in a negotiated grievance.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same
claim that is pending before or has been decided by the agency or
Commission. With regard to appellant's first allegation, the record
contains a settlement agreement dated July 25, 1997, in which appellant
agreed to withdraw all complaints concerning her work schedule. As the
record shows that allegation (1) was encompassed within the identified
settlement agreement, we find that dismissal of that allegation was
proper, pursuant to 29 C.F.R. �1614.107(a). Appellant is advised that
the agency properly informed her of the procedure for pursuing allegations
of settlement breach.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
The agency dismissed allegation (5) for untimely EEO Counselor contact,
finding that appellant requested additional training by memorandum
dated March 26, 1997, but did not contact an EEO Counselor until June 6,
1997, beyond the forty-five (45) day limit. We find that the agency's
decision was in error. There is no evidence of record that appellant
ever received a specific denial of her March request. The proper time
from which to toll the forty-five (45) day limitation period is from
the date appellant reasonably suspected discrimination, i.e., when she
first suspected that her request would not be granted and then when she
suspected that that denial was due to discrimination. In the instant
case, the agency improperly tolled the limitation period from the date
appellant requested training. We find that appellant's EEO contact on
June 6, 1997, was a reasonable amount of time after making her request
and, failing to hear a response, for appellant to have a reasonable
suspicion of discrimination. Accordingly, we find that appellant's
initial EEO Counselor contact concerning allegation (5) was timely.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency may dismiss
a complaint, or portion thereof, where the complainant has raised the
matter in a negotiated grievance procedure that permits allegations of
discrimination. In the instant case, the record shows that appellant
filed a grievance concerning the performance evaluation identified in
allegation (6). Additionally, the record shows that under the terms of
the agency's union agreement, employees have the right to raise matters
of alleged discrimination under the statutory procedure or the negotiated
grievance procedure, but not both. As the record indicates that appellant
elected to pursue the matter of her performance evaluation within the
grievance procedure, we find that the agency properly dismissed allegation
(6) pursuant to 29 C.F.R. �1614.107(d).
Accordingly, the agency's decision to dismiss allegations (1) and
(6) was proper, and is AFFIRMED for the reasons set forth herein.
The agency's decision to dismiss allegation (5) was improper, and is
hereby REVERSED. Allegation (5) is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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. �1614.10.
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:
Oct. 7, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations