01986755_r
10-14-1999
Tze-Shan T. Liu, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Tze-Shan T. Liu, )
Appellant, )
)
v. ) Appeal No. 01986755
) Agency No. 98-0419-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
On September 10, 1998, appellant filed a timely appeal with this
Commission from a letter from the agency dated August 28, 1998,
identifying the allegations in her complaint which were to be
investigated. Therein, the agency informed appellant that it would
investigate only seven allegations which appellant purportedly raised
during EEO counseling. In her formal complaint, appellant alleged
that she was subjected to forty-five (45) separate incidents of alleged
discrimination in reprisal for prior EEO activity.<1> Appellant further
alleged that the foregoing constituted harassment which created a hostile
work environment.
Because the agency's letter, in effect, dismissed the remaining
allegations in appellant's complaint pursuant to 29 C.F.R. �1614.107(b),
for raising matters that were not brought to the attention of an EEO
Counselor and were not like or related to matters that were brought to
the attention of an EEO Counselor, we will treat this letter as a final
decision on those allegations.
On appeal, appellant contends that the EEO Counselors who provided
her counseling failed to include all of the allegations she raised,
and instead limited counseling to the seven allegations accepted for
investigation.
The Commission notes that appellant's allegations do not contain dates on
which they purportedly occurred, often contain generalized allegations
of reprisal, and seem to include some allegations that were part of a
previous complaint appellant filed.
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); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
In the instant case, we find that there is insufficient information in
the record to make a determination whether the allegations that were not
accepted by the agency are like or related to those seven allegations
which were the subject of EEO counseling. As noted above, appellant
failed to identify when any of the alleged incidents of discrimination
occurred, many of her allegations are vague and/or general, and some
appear to have been raised in connection with a prior complaint she filed.
Based on the foregoing, the Commission finds that the record must be
supplemented before a determination on the acceptability of appellant's
allegations can be reached.
Accordingly, the agency's decision is hereby VACATED. This matter is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
Finally, appellant is advised that EEOC Regulation 29 C.F.R. �1614.106(c)
provides that a complaint must contain a statement that is sufficiently
precise to describe generally the action(s) or practice(s) that form
the basis of the complaint. Consequently, on remand, appellant is to
provide the agency with the dates on which the incidents of alleged
discrimination occurred, and identify with particularity the harm to
the terms, conditions or privileges of her employment she suffered as
a result.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall send appellant a letter requesting that she clarify
the allegations of discrimination she raised in the instant complaint.
The letter shall inform appellant that she is to provide the dates
on which the incidents of alleged discrimination occurred, and provide
clear, precise statements indicating the nature of the allegation and the
resulting harm to the terms, conditions or privileges of her employment.
The letter shall also inform appellant that she is to supply the requested
information, in writing, within fifteen (15) days of its receipt, or
face dismissal of her complaint pursuant to 29 C.F.R. �1614.107(g),
for failure to cooperate.
Within fifteen (15) calendar days of the date the agency receives
appellant's response, or of the date the time for appellant's response
expires, the agency will issue a notice of processing and/or final
decision specifically addressing each of appellant's allegations.
A copy of the agency's request to appellant, the notice of processing
and/or new FAD 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 (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:
October 14, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1The Commission notes that in her submissions on appeal, appellant
increased the total number of allegations of retaliation to eighty
(80).