0120121602
07-20-2012
Hee J. Chung, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Hee J. Chung,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121602
Agency No. ARPOM11SEP04097
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 25, 2012, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Professor at the Agency's Asian School in Monterey, California.
The record indicates that Complainant contacted the EEO Office on several occasions either in-person or via emails and telephone calls from May 2011 to November 2011. The Agency asserted that Complainant was informed about the EEO complaint process during this timeframe. On November 15, 2011, Complainant initiated a pre-complaint form. The record includes emails from the Agency's EEO Staff requesting that Complainant come in for counseling or to determine if mediation would be appropriate for her case. The EEO Staff also sent Complainant a copy of her Notice of Rights and Responsibility, asking that she sign and return the document.
On November 21, 2011, the EEO Staff contacted Complainant to try to conclude the informal process during the proscribed timeframes within the regulations. Complainant responded that the earliest she could meet with the EEO Counselor was December 5, 2011. The EEO Staff reminded Complainant of the 30-day time limit to engage in the counseling stage. On December 14, 2011, the EEO Office determined that it had been 30 days and asked Complainant if she would extend the counseling stage or wanted a Notice of Right to File a Formal Complaint.
Based on Complainant's request, the Agency issued a Notice to File on December 15, 2011. On December 22, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity when:
1. On or about September 20, 2011, the Associate Provost demanded medical information regarding sick leave, questioned Complainant about private health issues and repeatedly asked Complainant if he could make copies of her medical reports.
2. On October 5, 2011, the Dean of the Asian School (Dean) ordered Complainant to provide medical reports within two days.
3. On November 18, 2011, the Acting Dean threatened Complainant with discipline for requesting a medical certification form to use with the Family Medical Leave Act (FMLA) Form.
4. On October 20, 2011, after Complainant sent in her medical reports explaining a September 19, 2011 incident when she was taken from the workplace by ambulance and brought to the hospital, the school's security office sent out an email requesting that anyone who had ever been hospitalized due to mental health had to sign a medical records release form and that person's security clearance may be reviewed.
5. On September 20, 2011 and on October 5, 2011, the Associate Provost threatened that if Complainant filed an EEO complaint, or talked about "the issue" to anyone, he would use her time and attendance and conduct against her on her evaluation and he threatened her with Absent Without Leave (AWOL).
6. On October 12, 2011, the Associate Provost and the Chairperson (Chairperson 1) refused to allow Complainant to file an Office of Workers Compensation Programs (OWCP) claim regarding her mental breakdown at work when she had to be transported by ambulance to the hospital. On September 20, 2011, the Chairperson 1 and the Associate Provost told Complainant that it is up to the Chairperson whether she may file a Workers' Compensation claim or not. After the Complainant begged that she needed financial reimbursement for her medical bills, and under the promise that Complainant would not say anything about the issue. The Associate Provost told her that she may go ahead and file the OWCP claim. On or about September 29, 2011, the Associate Provost sent an email to the public stating "[Complainant] left me a phone message, stating that she will not file a (Workers' Compensation) claim for the specific incident which occurred on September 19, 2011." This happened after the Complainant had asked for an investigation of the Associate Provost and Chairperson 1 about requesting unlimited medical information about Complainant.
7. On or about November 1, 2011 Complainant received a level "5" (Unsuccessful) rating on her annual evaluation after she emailed the Associate Provost saying that it was wrong for him to threaten her for going to the EEO Office. Complainant alleges that the Associate Provost did her evaluation, not the Chairperson of the Korean Department (Chairperson 2). Complainant further alleges that evaluation input from Chairperson 2 was inappropriate because she had not supervised Complainant for very long. Complainant believes her evaluation was done by both Chairs from both departments and was unfair.
8. On October 4, 2011, Chairperson 1, yelled "get out!" at Complainant and quickly stood up from her seat, suddenly and violently approached Complainant, opened the door of her office and kicked the Complainant out of her office. This occurred immediately after Complainant had politely asked about how she may look into a reasonable accommodation. This happened the day after the Complainant sought help from the US Department of Labor (DOL) about filing an OWCP claim for her September 19, 2011 mental breakdown. Complainant reported to DOL that Chairperson 1 was interfering with the filing of her OWCP.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to comply with pre-counseling. The Agency noted that the regulations provide that, "Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter." 29 C.F.R. � 1614.105(a). The Agency noted that despite the communications with the EEO Office, Complainant failed to engage in the pre-complaint process.
Complainant appealed asserting that she was never warned that the case would be dismissed if she did not engage with the pre-complaint process. She indicated that she was being threatened by the Assistant Provost. As such, she requests that the Commission reverse the Agency's dismissal. The Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
We note that the regulations provide that the Agency may dismiss a compliant that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106 and 1614.204(c), unless the agency extends the time limits in accordance with � 1614.604(c), or that raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. 29 C.F.R. � 1614.107(a)(2). In essence, the Agency asserts that Complainant failed to bring the matter to the attention of a Counselor prior to filing the formal complaint.
Upon review of the record, we find that Complainant did provide the EEO Office with sufficient information to have brought the matter to the attention of the Counselor. We note that Complainant indicated to the Counselor that she feared going to the EEO Office based on the threats made by the Associate Provost. Given the circumstances of this case, the Commission determines that there is insufficient evidence to support the Agency's determination that the actions of complainant merited dismissal pursuant to the above referenced regulation.1
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). A fair reading of the complaint shows that Complainant, in essence, has raised a claim of ongoing harassment and interference with the pursuit of her rights, including her right to the EEO process,2 because of her disability and in retaliation for engaging in protected activity. This is sufficient to state a claim which requires further investigation and processing.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the complaint is REMANDED in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (ongoing harassment and interference with EEO process) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received 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 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (Nov. 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 (R0610)
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 (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
July 20, 2012
__________________
Date
1 EEOC Regulation 29 C.F.R. � 1614.604(c) provides that the time limits in Part 1614 are subject to waiver, estoppels, and equitable tolling.
2 We note that in allegation 5, for example, Complainant has alleged that the Associate Provost threatened her against filing an EEO complaint.
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0120121602
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121602