01A31771
07-02-2003
Suzanne Pyun, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Suzanne Pyun v. Social Security Administration
01A31771
July 2, 2003
.
Suzanne Pyun,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A31771
Agency No. 03-0080-SSA
DECISION
Complainant appeals to the Commission from the agency's December 19,
2002 decision dismissing claims 1 and 2 of her complaint for untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2), and
claims 2-5 pursuant to 29 C.F.R. � 1614.107(a)(4), for electing to
pursue these matters under the negotiated grievance procedure. In her
complaint, filed on November 20, 2003, complainant alleged that she was
discriminated against on the bases of race (Korean) and national origin
(Korean) and subjected to a hostile work environment when:
1. On May 2, 2002, complainant's District Manager remarked that although
he wanted complainant to be a good Claims Representative, complainant's
managers and her supervisor stated that she was not a good person and
that her co-workers hated to work with her. The District Manager also
stated that he would tell managers who contacted him for a reference
that complainant was not a good person.
2. On June 3, 2002, an Interviewing Behavior memorandum was placed in
complainant's SF-7B Extension File for six months.
3. On August 29, 2002 and October 4, 2002, the District Manager told
complainant that he had the NE Philadelphia District Office and he did
not need a Korean bilingual Claims Representative.
4. On September 2, 2002, the Assistant District Manager failed to
provide assistance and support to complainant after she became involved
in a dispute with an angry claimant.
5. On September 13, 2002, complainant learned that the District Manager
was the cause of her not being promoted to the Claims Representative
position as an outside hire in the Glen Burnie District Office.
Claims 2-5
The record indicates that complainant, previously filed a grievance,
Step 2, on September 26, 2002. Article 18, Section 6 of the bargaining
agreement reflects that allegations of discrimination can be raised.
Upon review, the Commission finds that claims 2-5 are the same matters
raised in complainant's grievance, i.e., concerning a hostile work
environment, a SF-7B file, the denial of promotion, and harassment from
her management. Complainant specifically identified the sections in the
bargaining agreement that she believed were violated and these sections
address the issues raised in claims 2-5. Because she elected to pursue
claims 2-5 pursuant to the provisions of a collective bargaining agreement
that permits allegations of discrimination to be raised, complainant
could not thereafter file a discrimination complaint on the same matter.
Complainant's subsequent withdrawal of the grievance on October 9, 2002,
does not rescind her election. Once complainant made her election, she
could not file a discrimination complaint on the same matter. Therefore,
the Commission finds that the agency's dismissal of claims 2-5 was proper.
Claim 1
The record discloses that claim 1 occurred on May 2, 2002, but complainant
did not initiate contact with an EEO Counselor until September 24, 2002,
which is beyond the forty-five (45) day limitation period. The contact
was therefore untimely. Although on appeal, complainant asserted that
she was not aware of the limitation period, complainant had constructive
knowledge of the applicable time limit. The record contains a February
4, 2003 statement from the District Manager which indicates that the EEO
poster was displayed on a bulletin board outside the lunchroom and was
on display at the time of the alleged discrimination. The statement
also indicates that although a new poster was displayed by the agency
in October 2003, the previous poster contained the same basic information.
Accordingly, the agency's decision is hereby AFFIRMED.<1>
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 (S0900)
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 (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
July 2, 2003
__________________
Date
1The Commission need not address the agency's
dismissal of claim 2 on the grounds of untimely EEO Counselor contact
because the claim was dismissed pursuant to 29 C.F.R. � 1614.107(a)(4).