0102100302
07-27-2012
Thao K. Luc, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Headquarters), Agency.
Thao K. Luc,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.
Appeal No. 0120100302
Agency No. HS09HQ002302
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 28, 2009 final decision concerning her equal employment opportunity (EEO) complaint. At the time of events giving rise to this complaint, Complainant worked as an Administrative Specialist in the Agency's Office of Counter Narcotics Enforcement in Washington, DC. For the reasons that follow, we AFFIRM the Agency's final decision.
Complainant alleged that due to her race (Asian) and sex (female) she was subjected to disparate treatment and a pattern of harassment constituting a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., when:
1. The Administrative Officer (AO) harassed her by: placing her on the fourth floor; spoke to her in a condescending manner and made fun of her when she requested certain training; stated her performance was making her look bad; yelled at her in the presence of three coworkers; and responded to her questions by asking, "what do you think the answer is?"
2. Rather than training her on WebTA, emergency preparedness procedures, and other processes, the AO told Complainant to "figure it out on [her] own."
3. On November 21, 2008, she was forced to resign from her position.
At the conclusion of the EEO investigation, Complainant was provided a copy of the investigative file and requested a final agency decision (FAD). In its FAD, the Agency found that management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the FAD stated that the AO offered credible testimony that she offered Complainant both general and explicit guidance in the administrative areas of her office, as well as, arranged for her attendance at the Occupant Emergency Plan Coordinator's Meeting. Complainant failed, according to the FAD, to establish that management's reasons for offering her the option to resign or be terminated were pretextual, nor did she produce any evidence that she was subject to unwelcome comments or conduct based on her race or sex. Complainant's failure to establish pretext and produce any evidence that she was subjected to harassment on the bases of race or sex prohibited a finding in her favor on the constructive discharge claim.
On appeal Complainant requests that the Commission reverse the FAD. Complainant contends that only three weeks before completing her probationary period she was forced to resign from her position. Complainant reiterates the allegations from her original complaint and states that she is seeking to be reinstated to the position she was forced to leave. Complainant has not offered any additional evidence in support of her allegations on appeal.
Record evidence reflects that Complainant was moved to the fourth floor in February 2008 in an effort to enable her to receive additional instruction and guidance on her primary administrative duties. Although Complainant's job responsibilities consisted of several routine tasks, the AO testified that Complainant had to be repeatedly reminded of her primary duties, as well as, contacted about the status of these tasks. The AO testified that after Complainant repeatedly asked questions on the same issues, despite a previous suggestion to write down processes, procedures, or answers as they were provided, she encouraged Complainant to try and find the answers to her questions independently.
The AO also states that she attempted to encourage Complainant to think about the answers to her questions by asking her "how would [she] handle this?" or "what do you think the answer might be?" The record reflects that a decision was made to remove Complainant during her probationary period based on her inability to follow instructions and grasp the fundamental responsibilities of her position. This decision was made after consulting with representatives from the Chief Human Capital Office, as well as, the Office of General Counsel. The termination was to be issued on the evening of November 21, 2008 and effective November 24, 2008. The Chief of Staff advised Complainant of her pending resignation the day before it was to occur, and advised her that while he would assist her in finding other employment, it would be more difficult for her to obtain another position within the Agency if she were terminated. Complainant submitted her letter of resignation on November 21, 2008 before she was issued the notice of termination.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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. 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 (Z0610)
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
_7/27/12_________________
Date
1 Constructive discharge occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced to leave/retire from his position. Constructive discharge only occurs when the agency's actions were taken with the intention of forcing the employee to leave/retire. The Commission has established three elements that an employee must prove to substantiate a claim of constructive discharge: 1) a reasonable person in the employee's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) the employee's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exch. Serv., EEOC Request No. 05900630 (July 20. 1990). We find that Complainant has not established that she was subjected to a hostile work environment, and therefore her allegation of constructive discharge must fail. Additionally, Complainant was advised that she was going to be terminated due to unsatisfactory performance and she subsequently submitted a letter of resignation prior to being issued the notice of termination.
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0120100302
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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