0520110627
02-07-2012
Karen M. Kim, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Karen M. Kim,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520110627
Appeal No. 0120111407
Agency No. 6L-000-0011-10
DENIAL
Complainant timely requested reconsideration of the decision in Karen
M. Kim v. U.S. Postal Service, EEOC Appeal No. 0120111407 (July 11, 2011).
EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where
the requesting party demonstrates 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. See 29 C.F.R.
§ 1614.405(b).
In our previous decision, the Commission determined that the Agency
improperly dismissed Complainant’s complaint, which alleged that the
Agency subjected her to a hostile work environment on the basis of sex and
in reprisal for EEO activity when her supervisor (S) and a coworker (CW)
yelled at her; S and CW made belittling comments about Complainant during
a teleconference; the Agency denied Complainant leave before her telework
day; and the Agency issued Complainant a poor evaluation. The Commission
also determined that Complainant’s claim that she was not selected
for positions in June 2007 and May 2008 was not a part of her hostile
work environment claim because Complainant did not specifically allege
that S or CW were responsible for the nonselections. Consequently, the
Commission reversed the Agency’s dismissal of Complainant’s complaint
and remanded her complaint to the Agency for further processing, without
the inclusion of the nonselection claims.
In her request for reconsideration, Complainant maintains that S “had
both direct and indirect involvement and influence on the outcome of
promotional selections,” which resulted in her nonselection in June
2007 and May 2008. However, even if Complainant maintains that S was
responsible for these nonselections, Complainant’s June 2007 and May
2008 nonselections were discrete acts that occurred more than 45 days
before she initiated EEO counselor contact on August 11, 2010. Hence,
Complainant’s nonselection claims are time-barred and not included in
her remanded hostile work environment claim because they were initiated
by untimely EEO counselor contact. See 29 C.F.R. §1614.107(a)(2).1
Complainant also maintains that after she filed the instant complaint,
she was subjected to new acts of discrimination and harassment.
If Complainant wants to pursue these matters within the EEO process,
she should contact an EEO counselor.
Consequently, after reviewing the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. § 1614.405(b), and it is the decision of the Commission to
DENY the request. The decision in EEOC Appeal No. 0120111407 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER (E0610)
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 (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.
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
February 7, 2012
Date
1 The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). However, the Court further held that
“discrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.” Id.
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0520110627
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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