Adriene D. Chapman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 9, 2001
01991686 (E.E.O.C. Feb. 9, 2001)

01991686

02-09-2001

Adriene D. Chapman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Adriene D. Chapman v. United States Postal Service

01991686

February 9, 2001

.

Adriene D. Chapman,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01991686

Agency No. 4-K-200-0717-98

DECISION

Upon review, the Commission finds that the complaint was improperly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).<1> The record shows

that complainant sought EEO counseling on May 5, 1998, claiming that

she had been discriminated against on the basis of sex. Subsequently,

complainant filed a formal complaint claiming that she had been

discriminated against on the bases of sex, age, and disability when:

(1) in August 1997, postal inspectors were called because she was accused

of stealing a bait money order and a missing Cal Ripken picture;

(2) between 1995-1996, her supervisor rated her work performance as

�poor� for the Associate Supervisor Program;

(3) in 1996, she was released as facilitator for achieving excellence

training;

(4) on November 1, 1995, she was denied union representation;

(5) on February 8, 1997, she was given Leave without Pay (LWOP) instead

of the sick leave she had requested;

(6) on July 17, 1997, she was denied leave under the FMLA;

(7) on July 30, 1997, she was falsely accused of stealing $60.00;

(8) on August 1, 1997, she was placed on emergency leave for an indefinite

period; and

(9) on September 10, 1997, she was issued a notice of removal effective

October 17, 1997, for unsatisfactory work performance.

Complainant claimed that after she rejected her Postmaster's sexual

advances that began in May 1995, he engaged in a pattern of discrimination

and harassment against her.

The agency dismissed the complaint for untimely EEO Counselor contact.

On appeal, complainant claims that she learned at her church about her

EEO rights, in April and May 1998.

The record contains an EEO Investigative Affidavit, executed by the

Postmaster which states that an EEO poster, with applicable time limits,

has been posted at the premises since May 1995.

The Commission has consistently held that where there is an issue of

timeliness, the agency always bears the burden of obtaining sufficient

information to support a reasoned determination as to timeliness.

Williams v. Department of Defense, EEOC Request No. 05920506 (August 25,

1992). The record shows that the agency has indeed provided an affidavit

which states that an EEO poster, with applicable time limits, has been

at the premises since May 1995. However, the Commission notes that the

affidavit was executed by the Postmaster who is allegedly responsible

for numerous acts of discrimination raised in the instant complaint.

Given the specific circumstances of this case, we are therefore unable to

ascertain whether complainant was apprized of the limitation period for

timely contacting an EEO Counselor. Accordingly, the agency's dismissal

of the complaint is VACATED. The complaint is REMANDED to the agency

for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

The agency is ORDERED to conduct a supplemental investigation to ascertain

whether complainant had been informed of the necessity for initiating

contact with an EEO Counselor and the time limits for doing so, and when

and how complainant had been so informed. The agency shall include, if

available, any affidavits prepared by parties other than the Postmaster

who prepared the affidavit addressed in this decision.

Within thirty (30) calendar days of the date that this decision becomes

final, the agency shall issue a final decision or notify complainant

that the agency is processing her complaint.

A copy of the new final agency decision or notice of processing must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(Supp. V 1993). 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 (M0900)

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 9, 2001

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.