01A04540_r
10-24-2001
Anita M. Binder, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Anita M. Binder v. Department of Veterans Affairs
01A04540
October 24, 2001
.
Anita M. Binder,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04540
Agency No. 200N-160
DECISION
Complainant initiated contact with an EEO Counselor on September 20, 1999.
In a formal EEO complaint dated October 23, 1999, complainant claimed
that she was subjected to discriminatory harassment on the basis of her
sex (female) when:
1. During the period of April 1999 - June 1999, her supervisor made
the following remarks to her: (a) Are you an on-top person?; (b)
you look really sexy; (c) you being such an outspoken woman, I would
think you would want to be in control; and (d) if I weren't married,
I would have already put a smile on your face. During that time frame,
complainant also alleged that: (e) the supervisor requested that he
use complainant's home address as a contact point with regard to his
ongoing legal matter; (f) the supervisor asked complainant if he could
stay at her house if he needed to in connection with the legal matter,
and (g) the supervisor hugged her. Complainant further claimed that:
(h) on August 30, 1999, the supervisor questioned her submission of
documents supporting her on-the-job injury claim; and (i) on August 31,
1999, complainant's supervisor apologized to her in the presence of a
coworker for his comment that she looked sexy after complainant mentioned
the remark during their meeting on August 30, 1999.
The agency dismissed the incidents that allegedly occurred from April
1999 - June 1999 on the grounds that complainant failed to initiate
contact with an EEO Counselor in a timely manner. The agency determined
that complainant's EEO contact on September 20, 1999, was more than 45
days after any of these incidents occurred. The agency also determined
that the continuing violation theory is not applicable because the
matters that allegedly occurred in August 1999 are not related to the
previous incidents by a common nexus. The agency stated that these
claims involve allegations of non-sexual harassment and the incidents
that allegedly occurred from April 1999 - June 1999 concern allegations
of sexual harassment. The claims involving the incidents that allegedly
occurred in August 1999 were dismissed on the grounds of failure to state
a claim. The agency determined that these incidents of alleged non-sexual
harassment were not sufficiently egregious to constitute harassment, and
that these incidents did not cause complainant to suffer personal loss
or harm with regard to a term, condition, or privilege of her employment.
We find that the agency improperly dismissed this complaint.
Complainant essentially has stated one claim of harassment. We find
that the entire claim is timely as the incidents that allegedly occurred
during the period of April 1999 - June 1999 are sufficiently related
to the incidents that allegedly occurred in August 1999. We further
find that the alleged incidents state a claim of harassment. Therefore,
complainant has stated a claim under the EEOC Regulations. Accordingly,
the agency's decision dismissing complainant's complaint was improper and
is REVERSED. This complaint is hereby REMANDED for further processing
pursuant to the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
October 24, 2001
__________________
Date