Ida S. Holmes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 23, 2001
01994045 (E.E.O.C. Feb. 23, 2001)

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