01981015
10-01-1998
Julie J. Rogers, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Julie J. Rogers, )
Appellant, )
)
v. ) Appeal No. 01981015
) Agency No. 4-G-770-0582-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final decision was received by appellant
on October 17, 1997. The appeal was postmarked November 13, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The record reflects that, on January 23, 1997, appellant sent a letter
to the agency regarding purported incidents of sexual harassment at
the facility where she is employed. By letter dated May 14, 1997, an
agency official responded to the letter appellant had sent, regarding
alleged sexual harassment at the agency's Memorial Park Station unit.
The agency official stated that Labor Relations employees were requested
to investigate the matter; that they visited the unit on four occasions
over a six-week period; that appellant refused to discuss the matter
with them until she had the opportunity to first consult a Union Steward;
and that appellant subsequently provided a written statement, but would
not answer any questions. The agency official concluded that there was
no evidence of sexual harassment.
On May 16, 1997, appellant initiated contact with an EEO Counselor.
The record contains an Information for Precomplaint Counseling. Therein,
appellant stated that on May 14, 1997, she had received an agency response
to her charge of sexual harassment; and that she disagreed with agency
management's findings, i.e., she alleged that sexual harassment had indeed
occurred. Informal efforts to resolve her concerns were unsuccessful.
On July 12, 1997, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the basis of sex.
Appellant's complaint was comprised of the matter for which she underwent
EEO counseling, discussed above.
The agency thereafter issued a final decision (undated), dismissing
the portion of appellant's complaint concerning the results of the
investigation for failure to state a claim. The agency dismissed
appellant's complaint with regard to her allegations of sexual harassment
on the grounds of failure to initiate contact with an EEO Counselor in
a timely fashion.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex, and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination
on the basis of disability) shall be processed in accordance with Part
1614 of the EEOC Regulations. In addition, the U.S. Supreme Court has
stated that an employee is aggrieved when some personal loss or harm
has been suffered with respect to a term, condition, or privilege of
employment. See Trafficante v. Metropolitan Life Insurance Co., 409
U.S. 205 (1972).
In this case, appellant's complaint addresses her disagreement with the
agency's response to her January 1997 charge of sexual harassment, i.e.,
appellant's reiteration that sexual harassment previously occurred.
Clearly, to the extent that appellant is alleging sexual harassment,
her complaint states a claim. If appellant's complaint is interpreted
as addressing the results of the agency's investigation, then it is
properly dismissed for failure to state a claim since it would be a
collateral attack on the outcome of another administrative dispute
resolution process. Therefore, the issue regarding the results of the
investigation was properly dismissed for failure to state a claim.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
Appellant's EEO contact on May 16, 1997, was clearly more than forty-five
days after the alleged sexual harassment which she reported in January
1997. The Commission has held that the use of the grievance process or
other internal appeal process does not toll the time limit for contacting
an EEO Counselor. See Speed v. USPS, EEOC Request No. 05921093 (June
24, 1993). Appellant does not contend that she was unaware of the time
limit or procedures for initiating EEO contact. Consequently, we find
that the agency properly dismissed appellant's allegations regarding
sexual harassment occurring in January 1997, for untimely EEO contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to
the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you
receive the request to reconsider. See 29 C.F.R. �1614.407. All requests
and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct. 1, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations