01994045
02-23-2001
Ida S. Holmes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ida S. Holmes v. United States Postal Service
01994045
February 23, 2001
.
Ida S. Holmes,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994045
Agency No. 4H-370-0022-99
DECISION
After contacting an EEO Counselor, complainant filed a formal complaint
on January 20, 1999, alleging 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 alleged that she was subjected
to discrimination and harassment on the basis of sex (female) when:
complainant was subjected to various unwelcome sexual incidents by her
supervisor. The agency identified the dates of the alleged incidents
as beginning on October 8, 1998. Complainant stated that the incidents
identified in her formal complaint occurred from January 1998, to the
present.
By letter dated March 15, 1999, the agency characterized the complaint
by stating that complainant was subjected to various unwelcome sexual
incidents by her supervisor. The agency identified the dates of the
alleged incidents as October 8, 1998, and ongoing. Complainant was
directed to notify the agency within seven days of receipt of the
letter if she objected to the definition of the issue to be processed.
The record reveals that complainant objected to the agency's definition
of the issues in a March 17, 1999 letter. Specifically, complainant
requested that the dates identified in her formal complaint be adjusted to
read �January 1998, and ongoing.� The agency issued a final decision on
April 5, 1999, stating that the scope of the investigation would remain
as stated in its March 15, 1999 letter. Complainant filed the present
appeal.
Upon review of the record, we find that the agency incorrectly identified
the dates of complainant's complaint. We note that in the information
provided for precomplaint counseling, complainant stated that the most
recent incident of harassment occurred on October 8, 1998. Both the
EEO Counselor's Report and a November 13, 1998 memorandum prepared by
the EEO Counselor discuss complainant's claim that she was subjected to
a hostile work environment by her supervisor from January 1998, through
October 1998. In addition, the November 13, 1998 memorandum references
a seventeen page statement provided by complainant which identified the
the incidents of alleged harassment as occurring between January 1998,
and October 1998. In this statement, complainant describes in detail
the statements, physical contact, and other incidents that she believes
constituted sexual harassment. Also, the record discloses that on October
26, 1998, complainant's supervisor submitted an eleven page letter to the
EEO Counselor responding to the incidents of alleged sexual harassment as
identified by complainant between January 1998 and October 1998. Thus,
we find that the agency incorrectly defined the dates of complainant's
complaint by excluding the alleged incidents which occurred between
January 1998 and October 7, 1998.
Accordingly, the agency's decision defining the dates of the alleged
discriminatory incidents was improper and is REVERSED and the complaint of
whether complainant was subjected to various unwelcome sexual incidents
by her supervisor from January 1998, and ongoing is REMANDED for further
processing in accordance with the Order below.
ORDER (E0900)
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 (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 23, 2001
__________________
Date