Joneta S. Puma, Complainant,v.Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionFeb 22, 2007
0120070201 (E.E.O.C. Feb. 22, 2007)

0120070201

02-22-2007

Joneta S. Puma, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.


Joneta S. Puma,

Complainant,

v.

Carlos M. Gutierrez,

Secretary,

Department of Commerce,

Agency.

Appeal No. 0120070201

Agency No. 065400126

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 19, 2006, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her

complaint, complainant alleged that she was subjected to discrimination

on the basis of national origin (Filipino, Asian/Pacific Islander) when:

1. Since June 2005, two Team Leaders (CW1 and CW2: national origin

unknown) have repeatedly made disparaging comments about her performance,

including mistakes on time-and-attendance files;

2. Since June 2005, CW1 and a Division Chief (RMO1: national origin

unknown) have repeatedly threatened to place her on a Performance

Improvement Plan;

3. On June 16, 2005, CW1 called her a "liar" and forced her to take

annual leave for a work travel day.

4. Since August 2005, CWs 1 & 2 and RMO 1 obstructed her attempts

for reassignment and consideration for other Administrative Assistant

positions;

5. Since August 2005 CW1 repeatedly shared personal information about

complainant with other employees;

6. On October 15, 2005, RMO1 denied her request to attend a free

workshop;

7. On or about October 25, 2005, a Human Resources Specialist (CW3:

national origin unknown) disqualified her for consideration for a Grant

Administrator position;

8. In November 2005, RMO1 yelled at complainant, accused her of "lying"

on her application for the Grant Administrator position, and called her a

"troublemaker" and an "instigator."

9. CW2 makes her own travel arrangements and those of other employees

even though it is her responsibility to make travel arrangements and

complete travel orders;

10. Since November 2005, various management officials have told their

employees not to speak to complainant about her "situation';

11. On or about January 12, 2006, another agency employee (CW3: national

origin unknown) told her that CW1 had referred to her as "a halfwit who

could not add".

12. On or about January 23, 2006, CW3 told complainant that another

employee (CW4: national origin unknown) had made disparaging remarks

about her; and

13. Her performance evaluation score was lowered.

The agency dismissed the complaint on the grounds that complainant had

previously raised these claims in a negotiated grievance procedure.

On appeal, complainant makes no argument addressing the agency's

contention that these issues were previously raised in a grievance.

The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that

an agency may dismiss a complaint where the complainant has raised

the matter in a negotiated grievance procedure that permits claims of

discrimination. The record, however, is incomplete regarding whether

or not, under the terms of the agency's union agreement, employees have

the right to raise matters of alleged discrimination under the negotiated

grievance procedure. Furthermore, while the record shows that complainant

filed one or more grievances, it is not clear whether any, or all,

of complainant's grievance claims were accepted, or whether any claims

were rejected for lack of jurisdiction. Given this lack of information,

we REVERSE the FAD and REMAND for further development as outlined below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (K0501)

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 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 (M0701)

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), 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 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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 22, 2007

__________________

Date

2

0120070201

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120070201