01985847
05-25-2000
Appeal Nos. 01985847 Minh T. Giang, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Minh T. Giang v. United States Postal Service
01985847
May 25, 2000
Appeal Nos. 01985847
Minh T. Giang, ) 01986062
Complainant, ) 01986063
) 01990441
v. ) 01990442
) 01991288
William J. Henderson, ) Agency Nos. 1D-231-0002-98
Postmaster General, ) 1D-231-0025-98
United States Postal Service, ) 1D-231-0048-98
Agency. ) 1D-231-0097-98
____________________________________) 1D-231-0098-98
1D-231-0152-98
DECISION
On July 24, 1998, August 4, 1998, October 20, 1998, and November 23, 1998,
complainant timely initiated appeals to the Commission from one agency
decision dated June 19, 1998, two agency decisions dated July 6, 1998, two
agency decisions dated September 11, 1998, and one agency decision dated
October 28, 1998. Complainant alleged that the agency violated Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The regulation set forth at 64 Fed. Reg. 37,644, 37,661 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �1614.606) provides
that the agency or the Commission may consolidate two or more complaints
of discrimination filed by the same complainant. Accordingly, we will
address complainant's six appeals in one decision because in these appeals
complainant alleges that she has been subjected to a continuing pattern
of retaliation, discrimination, and harassment.
Agency Case No. 1D-231-0002-98
On May 22, 1998, complainant filed a formal complaint alleging that she
was subjected to discrimination on the bases of race (Chinese-Asian),
color (yellow), national origin (Chinese), sex (female), and in
retaliation for prior EEO activity when:
After filing a formal complaint on July 22, 1997, and after having a
conversation with the Manager of Distribution Operations of Tour III
(MDO) on August 5, 1997, complainant was subjected to retaliation,
harassment, intimidation, and rude yelling through September 12, 1997.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)), for stating the
same claim that is pending before or has been decided by the agency or
Commission. Specifically, the agency stated that the matters raised in
complainant's present complaint are identical and arise from the same
transaction as the matters raised in Agency Case No. 1D-231-0151-97.
In Agency Case No. 1D-231-0151-97, complainant alleged discrimination
based on race, color, national origin, and sex when on July 10, 1997,
she requested a meeting with the MDO to discuss problems she has having
with two acting supervisors and after the meeting occurred in August 1997,
complainant experienced more harassment and intimidation which resulted in
complainant leaving work sick on November 2, 1997, and taking additional
sick leave. In her May 22, 1998 complaint, complainant claimed that
her supervisors harassed her in various ways between August 5, 1997 and
September 3, 1997, (i.e., employee rushed at complainant as if he was
going to strike her; and another employee cursed at complainant).
Agency Case No. 1D-231-0025-98
On June 5, 1998, complainant filed a complaint of discrimination in
which she alleged that she was subjected to discrimination on the bases
of race (Chinese-Asian), color (yellow), national origin (Chinese), sex
(female), and in retaliation for prior EEO activity when:
Beginning in September 1997, through November 2, 1997, the MDO and other
supervisors purposely harassed, discriminated, retaliated, and practiced
rudeness towards complainant.
The agency issued a decision dated July 6, 1998, dismissing
complainant's complaint pursuant to the regulation set forth at 29
C.F.R. � 1614.107(a)(1), for stating the same claim previously raised
and addressed in Agency Case No. 1D-231-0151-97. In her June 5, 1998
complaint, complainant claimed that her supervisors harassed her in
various ways between September 1997 and November 2, 1997 (including,
commenting on the frequency of complainant's breaks, making remarks about
Chinese customs, staring at her, and timing her bathroom breaks). Also,
complainant alleged that her co-workers harassed her at the command of
her supervisors (i.e., co-workers called her an "ass-hole" and told her to
"go to hell").
Agency Case No. 1D-231-0048-98
On June 5, 1998, complainant filed a formal complaint alleging that she
was subjected to discrimination on the bases of race (Chinese-Asian),
color (yellow), national origin (Chinese), sex (female), and in
retaliation for prior EEO activity when:
On November 2, 1997, and December 2, 1997, the Manager of Distributions
Operations (MDO) and other supervisors have constantly and purposefully
practiced discrimination, harassment, intimidation, rudeness and required
complainant to do excessively hard work to the point where she feels
inadequate at work.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for stating the same claim
that is pending before or has been decided by the agency or Commission.
Specifically, the agency stated that the matters raised in complainant's
present complaint are identical and arise from the same transaction as
the matters raised in Agency Case No. 1D-231-0151-97.
Agency Case No. 1D-231-0097-98
On August 7, 1998, complainant filed a formal complaint alleging that she
was subjected to discrimination on the bases of race (Chinese-Asian),
color (yellow), national origin (Chinese), sex (female), and in
retaliation for prior EEO activity when:
On March 21, 1998, co-workers screamed at complainant and picked on her;
On April 1, 1998, Associate Supervisor, Person A, pulled out a rack
and hit complainant and didn't say he was sorry;
On April 4, 1998, complainant came back late from lunch because she had
to get medical advice from the nurse with her supervisor's permission
and she was screamed at;
On April 9, 1998, complainant had to leave for an appointment and was
screamed and yelled at and a rumor began that she was lazy and doesn't
sweep mail down, and;
On April 15, 1998, complainant reported to her supervisor that a
co-worker had pulled a report from the computer and kept it, which
made the co-worker mad.
The agency issued a decision dated September 11, 1998, dismissing
complainant's complaint pursuant to � 1614.107(a)(1) for failure to
state a claim. Specifically, the agency claimed that complainant failed
to provide any evidence that she suffered a personal loss or harm with
respect to a term, condition, or privilege of employment as a result of
the alleged management actions cited in this case. With regard to claim
(2), the agency noted that complainant was not injured when Person A
hit her with the rack.
Agency No. 1D-231-0098-98
On August 7, 1998, complainant filed a formal complaint alleging that she
was subjected to discrimination on the bases of race (Chinese-Asian),
color (yellow), national origin (Chinese), sex (female), and in
retaliation for prior EEO activity when:
(1) On March 27, 1998, Supervisor B, screamed and yelled at complainant
and accused her of rudely leaving paper towels on the seat the night
before; and,
On April 3, 1998, Supervisor B, yelled at complainant to take off her
earphones while allowing another PTF mail processor (a black male)
to wear earphones.
The agency issued a decision dated September 11, 1998, dismissing
complainant's complaint pursuant to the regulation set forth at 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically,
the agency claimed that complainant failed to provide any evidence that
she suffered a personal loss or harm with respect to a term, condition,
or privilege of employment as a result of the alleged management actions
cited in this case.
Agency Case No. 1D-231-0152-98
On October 3, 1998, complainant filed a formal complaint alleging that she
was subjected to discrimination on the bases of race (Chinese-Asian),
color (yellow), national origin (Chinese), sex (female), and in
retaliation for prior EEO activity when:
On July 2, 1998, complainant was harassed by Supervisor B, when she was
being yelled and screamed at while instructed to move to 044 Unit, and
once complainant moved to the 044 Unit, Supervisor C harassed complainant
and treated her differently than the other workers.
The agency issued a decision on October 28, 1998, dismissing complainant's
complaint pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.105(a)(2)), on the grounds of untimely EEO Counselor contact.
Specifically, the agency claimed that complainant did not contact a
Counselor until August 17, 1998, approximately forty-six (46) days after
the alleged discriminatory action occurred on July 2, 1998.
ANALYSIS AND FINDINGS
We note that the agency dismissed complainant's six complaints for various
reasons, i.e., three complaints were dismissed for stating the same
claim as had been previously decided by the agency, two complaints were
dismissed for failure to state a claim, and one complaint was dismissed
on the basis of untimely EEO Counselor contact. The Commission finds,
however, that in each of these complaints, complainant alleged a pattern
of harassment. We note that complainant's appeals consistently argued
that these claims should be viewed in light of other similar statements.
However, the agency dismissed the claims in the present cases for
involving isolated incidents from which complainant suffered no concrete
harm. Complainant's harassment claims, in the present six cases, although
addressed in separate complaints, involve several different incidents of
alleged repeated harassment over the span of a little less than one year.
Further, complainant alleged that she repeatedly complained to management
about the harassment that she received, but that the harassment has
not ceased.
At the outset, we note that the agency improperly dealt with each claim
in a piecemeal manner, and therefore, allowed complainant's claim of
harassment to be fragmented among several pending complaints. See
Meaney v. Department of the Treasury, EEOC Request No. 05940169
(Sept. 29, 1994). (an agency should not ignore the "pattern aspect"
of a complainant's claims where an analogous theme unites the matters
complained of); Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (Feb. 27, 1997) (claims in previous complaints used to
determine whether claims in pending cases are part of a pattern of
harassment).
With regard to Agency Case Nos. 1D-231-0002-98, 1D-231-0025-98, and
1D-231-0048-98, we find that the agency improperly dismissed these
claims as raising the same claim previously raised in Agency Case
No. 1D-231-0151-97. In Agency Case No. 1D-231-0151-97, complainant
alleged that on July 10, 1997, she requested a meeting with the MDO to
discuss problems she was having with two acting supervisors and after
the meeting occurred in August 1997, she experienced more harassment
and intimidation which resulted in complainant leaving work sick on
November 2, 1997, and taking additional sick leave. In Agency Case
No. 1D-231-0002-98, complainant alleged that after filing a formal
complaint on July 22, 1997, and after having a conversation with
the MDO on August 5, 1997, complainant was subjected to retaliation,
harassment, intimidation, and rude yelling through September 12, 1997.
On the formal complaint complainant lists the dates on which the alleged
acts of discrimination occurred to include the period from August 4, 1997
through September 12, 1997. In a statement attached to her complaint,
complainant describes the alleged discriminatory incidents beginning on
August 5, 1997, including several incidents of yelling and harassment from
her supervisors and co-workers. While complainant mentions the July 10,
1997 request for a meeting with the MDO and the subsequent meeting on
August 5, 1997, we find that this information consists of background
information for the claims of subsequent harassment that she raises in
Agency Case No. 1D-231-0002-98.
With regard to Agency Case No. 1D-231-0025-98, we also find that the
agency improperly dismissed this claim for stating the same claim
previously raised in Agency Case No. 1D-231-0151-97. As previously
noted, Agency Case No. 1D-231-0151-97 involved a claim that on July
10, 1997, complainant requested a meeting with the MDO to discuss
problems she was having with two acting supervisors and after the
meeting occurred in August 1997, she experienced more harassment
and intimidation which resulted in complainant leaving work sick on
November 2, 1997, and taking additional sick leave. In contrast, in
Agency Case No. 1D-231-0025-98 complainant claimed that beginning in
September 1997, through November 2, 1997, the MDO and other supervisors
purposely harassed, discriminated, retaliated, and practiced rudeness
towards complainant. In her formal complaint, complainant lists
the dates on which the alleged discriminatory actions occurred to
include the period from September 12, 1997, through October 30, 1997.
Complainant identified several incidents of harassment by her supervisors,
including comments on the frequency of her breaks, remarks about Chinese
customs, and monitoring of complainant's bathroom breaks. We find that
in Agency Case No. 1D-231-0025-98, complainant did not raise the same
matters previously raised in Agency Case No. 1D-231-0151-97.
With regard to Agency Case No. 1D-231-0048-98, we note that in the formal
complaint filed on June 5, 1998, complainant alleged that she was subject
to discrimination when the MDO and other supervisors harassed her on
November 2, 1997, and December 2, 1997, and constantly required her to
do excessively hard work to the point where complainant felt inadequate
at work. As previously indicated, in Agency Case No. 1D-231-0151-97,
complainant challenged the MDO's delay in meeting with her to discuss the
problems she was having with two acting supervisors and raised the issue
of constant harassment resulting in her leaving work sick on November
2, 1997, and taking additional leave. In contrast, in Agency Case
No. 1D-231-0048-98, complainant raises an allegation of being harassed
on a daily basis and being forced to do excessively hard work. Thus,
we find that Agency Case No. 1D-231-0048-98 does not state the same
claim as previously raised in Agency Case No. 1D-231-0151-97.
Furthermore, we find that the agency's dismissal of Agency Case
Nos. 1D-231-0097-98 and 1D-231-0098-98 for failure to state a claim
was also improper because complainant alleged numerous incidents of
harassing treatment which were sufficient to rise to the level to a
state a hostile work environment claim. Finally, with regard to Agency
Case No. 1D-231-0152-98, we note that even if the Commission looked at
this complaint individually, it would not be untimely. We note that
the alleged discriminatory incident in that case occurred on July 2,
1998, and according to the EEO Counselor's report, complainant initially
contacted an EEO Counselor on August 17, 1998, forty-six (46) days after
the alleged incident occurred. Due to the fact that August 16, 1998 was
a Sunday, the time limit for Counselor contact extends to August 17,
1998, the next business day. 29 C.F.R. � 1614.604(d). Accordingly,
complainant's contact on August 17, 1998 was timely.
Accordingly, the agency's decisions dismissing complainant's claims
in Agency Case Nos. 1D-231-0002-98, 1D-231-0025-98, 1D-231-0048-98,
1D-231-0097-98, 1D-231-0098-98, and 1D-231-0152-98 were improper and are
hereby REVERSED and these claims are REMANDED for further processing in
accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Consolidate the remanded claims with any related claims, in particular,
Agency Case No. 1D-231-0151-97, and notify complaint of such
consolidation.
Process the remanded claims in accordance with 64 Fed. Reg. 37,644,
37,656-7 (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.108).
The agency shall acknowledge to the complainant that it has received and
consolidated the remanded claims within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to complainant
a copy of the investigative file and also shall notify complainant 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 complainant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment and notice of
consolidation to complainant 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 (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
May 25, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.