Sudad Kunaish, Complainant,v.Pete Geren, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 30, 2007
0120063865 (E.E.O.C. May. 30, 2007)

0120063865

05-30-2007

Sudad Kunaish, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.


Sudad Kunaish,

Complainant,

v.

Pete Geren,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01200638651

Agency No. ARFTMCPH05AUG10619

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision (FAD) dated May 2, 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 claimed that she was subjected to

discrimination on the basis of national origin (Arab) when:

1. on June 7, 2004, her supervisor began assigning extra duties to her

and despite her repeated requests to rewrite her position description

so she would receive a non-competitive promotion, he did not do so,2

2. on September 11, 2004, her supervisor and another official did not

provide correct information to ensure her position would be transferred

to the United States Military Training Mission (USMTM),

3. in September 2004, after signing a renewal of a site contact for

complainant, her supervisor changed it to a contract extension,

4. on January 30, 2005, she was forced by her supervisor and another

official to reimburse taxi coupons,

5. on February 20, 2005, her driver's credentials were disapproved by

her supervisor and another official,

6. on March 22, 2005 and April 14, 2005, respectively, she was not

informed of the availability of two inspector general (IG) offices by

her supervisor,

7. on March 30, 2005, awnings were not installed in her villa because

of her supervisor's actions,

8. on April 2, 2005, her supervisor manipulated an employee to make

false statements alleging her client falsified her time card,

9. on April 11, 2005, her removal was proposed by her supervisor,3

10. on April 16, 2005, information that there was an investigation of

allegations of misconduct by complainant were provided to a foreign

government by complainant's supervisor,

11. on April 18, 2005, only a portion of sign in sheets complainant

requested were released by the supervisor,

12. on April 27, 2005, security forces soldiers were instructed by

complainant's supervisor not to provide complainant written or verbal

statements, nor to interact with her,

13. on May 2, 2005, complainant's request for two weeks sick leave was

denied, and the supervisor only granted one week,

14. on May 15, 2005, complainant's performance rating scheme was changed

by her supervisor resulting in her ratings dropping from excellent to

fair based on false allegations of misconduct and irresponsibility,

15. on May 16, 2005, complainant's waiver allowing her to leave the post

to spend time with her family was rescinded by actions of her supervisor,

16. on May 16, 2005, the supervisor raised an axe at her client in a

threatening matter,

17. on May 18, 2005, her supervisor imitated the act of beheading in a

suggestive manner, and

18. on June 2, 2005, the supervisor threatened complainant by slamming

doors and cursing.

During the above period, complainant worked for the agency as an Engineer

Technician, GS-7, and was stationed at a military camp or base in Saudi

Arabia called Eskan Village. The agency had restrictions on employees

Eskan Village for unofficial purposes. These included a daily 3:00

a.m. curfew. By memo written November 30, 2004, complainant was exempted

from the curfew for reasons individual to her, including that she had

a Syrian spouse and three young children that live in Riyadah, and she

was fluent in Arabic and could easily blend into the Saudi environment

without undue attention. The agency revoked the curfew waiver on May

15, 2006, and on June 18, 2006, it relaxed the curfew for complainant,

lifting it on non-work days.

On June 2, 2005, the supervisor referenced in complainant's claims left

complainant's base.4

On appeal, complainant states that the last hostile act occurred on May

7, 2005. However, she contends that the discrimination continued, such

as still being subject to the curfew and being ostracized by people not

sitting at her table during lunch.

The FAD dismissed the complainant for failure to timely initiate

contact with an EEO counselor. It reasoned that the last act of claimed

discrimination occurred on June 2, 2005, but complainant did not initiate

contact with an EEO counselor until August 3, 2005, beyond the 45 day

time limit.

An aggrieved person must seek EEO counseling within 45 days of the date

of the alleged discriminatory action, or in the case of a personnel

action, within 45 days of the effective date of the action. 29 C.F.R. �

1614.105(a)(1) and .107(a)(2). This time limit shall be extended when for

reasons considered sufficient by the agency or Commission. 29 C.F.R. �

1614.105(a)(2).

Complainant contends that she timely contacted an agency IG office, and

it served a dual role of handling IG matters and doing EEO counseling.

However, this contention is persuasively rebutted by the IG. The IG

wrote that he repeatedly informed complainant that EEO matters should be

raised in the EEO forum. He wrote that when complainant first raised an

EEO protected purview on April 6, 2005, he immediately obtained an EEO

point of contact and then provided it to complainant. Moreover, there

is documentation in the record showing that by June 6, 2005, complainant

was individually and directly informed of the 45 day time limit to seek

EEO counseling and contact information for doing so. Complainant adds

on appeal that there was a posting between October 2004 and October 2005

in Eskan Village instructing that both IG and EEO complaints should be

raised with the IG. With the absence of such a poster in the record,

we do not find this contention credible. It is not credible in light

of the statement of the IG, documentation in the record that complainant

was informed of an EEO point of contact on June 6, 2005, and that such a

poster would be quite unusual since handling EEO claims requires special

training which the IG suggests he did not have.

Regarding the portion of claim 1 of denial of promotion for accretion

of duties, we find this matter timely because complainant is claiming

that the agency continued to assign her higher level duties without

the accompanying higher level pay. However, because each occurrence

of this (paychecks) is a discrete discriminatory act, relief usually

will be limited to the occurrences within the filing period. A timely

charge also may challenge incidents that occur after the charge is filed.

However, the only timely portion of the non-promotion claim is from June

19, 2005, onward, i.e., those paychecks received within the 45 day time

limit to contact an EEO counselor and thereafter.

Regarding claim 12, complainant indicated in correspondence with the EEO

counselor that since this occurred, she has been ostracized. She wrote

that the soldiers at the gate became brief and firm and gave her an

ugly look, and no one will sit with her at dining tables in the dining

facility. On appeal, complainant contended discrimination continued,

and gave as an example people not talking to her or sharing a table

with her at the dining facility. We find that claim 12 regards being

ostracized, and this continued into the filing period. Accordingly,

complainant timely sought EEO counseling regarding claim 12.

The remaining claims, however, were properly dismissed for failure to

timely seek EEO counseling. We note that claim 15 regards the agency's

dropping the curfew waiver for complainant on May 15, 2005, and only

partially reinstating the waiver on June 18, 2006. The second decision

occurred after complainant's supervisor left, and both decisions occurred

outside the 45 calendar day time limitation to initiate contact with an

EEO counselor, making this matter untimely.

Accordingly, the FAD is affirmed in part, and reversed in part.

ORDER (E0900)

The agency is ordered to process the portion of claim 1 regarding failure

to provide complainant a non-competitive promotion for accretion of

duties starting on June 19, 2005, and claim 12 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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

May 30, 2007

__________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

2 The agency's styling of this claim does not mention the denial of

a non-competitive promotion. However, a review of correspondence

by complainant to the EEO counselor, the counselor's report, and the

complaint show claim 1 regards not receiving a promotion via accretion

of duties.

3 The proposed removal charged complainant with making false statements,

misrepresentation or fraud in entitlements, falsifying information on

a time card, and using government property and allowing others the use

of while in a duty status for other than official purposes. By letter

dated July 17, 2005, the agency rejected the proposed removal, absolving

complainant of the fraudulent overtime charges, explicitly placing

complainant in good standing in all respects as a government employee,

and determining that the other matters had already been satisfactorily

resolved. The letter also directed that complainant's latest performance

appraisal, which referenced alleged misconduct, would be deleted and

the performance rating upwardly revised.

4 Complainant was separated via reduction-in-force effective May 5, 2006.

In an initial decision, the Merit Systems Protection Board (MSPB) upheld

the removal and found no national origin discrimination. Kunaish v. Army,

MSPB No. DC-0351-06-0610-I-1, 2006 WL 4004585 (Personnet) (December 15,

2006).

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0120063865

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120063865