01A22348_r
01-09-2003
Marilyn J. Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marilyn J. Anderson v. United States Postal Service
01A22348
January 9, 2003
.
Marilyn J. Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22348
Agency No. 4F-956-0011-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 26, 2002, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
On October 9, 2001, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful
In her complaint filed on February 14, 2002, complainant alleged that
she was subjected to discrimination on the basis of sex. Therein,
complainant provided a chronological annotation of purported incidents
of sexual harassment by her supervisor, as well as addressing the issue
of being denied window training in July 1999. In that portion of the
complaint form requesting that complainant's identify the dates of
alleged discrimination, complainant wrote �April 17, 1999 to present.�
In its final decision, the agency determined that complainant's complaint
was comprised solely of the claim that on July 17, 2001, her supervisor
informed her that she was no longer a candidate for window training which
she believes is a result of her having denied him sexual favors in 1999.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. The agency concluded that information
regarding the EEO process and time limits are on display at the facility
where complainant was employed.
On appeal, complainant states that she was subjected to sexual harassment
by her supervisor over a span of 16 months. Complainant further states
that exactly two weeks before her October 9, 2001 EEO contact, her
supervisor attempted to initiate a sexual relationship with her, after
having made such overtures to her in the past. In response, the agency
requests that the Commission affirm its final decision.
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.
Upon review, the Commission finds that the agency improperly dismissed the
complaint for untimely EEO Counselor contact. The agency determined
that the instant complaint was comprised solely of the claim that
complainant's supervisor informed her in July 2001 that she was no
longer a candidate for window training, which complainant believes is
a result of her having denied him sexual favors in 1999. However,
a fair reading of complainant's complaint reflects that the matters
raised therein are not confined to that specific issue.
The Commission determines that complainant instead claims that she was
subjected to harassment by her supervisor from April 17, 1999 until at
least two weeks prior to her October 9, 2001 EEO contact, as reflected by
the following alleged incidents: Complainant invited her supervisor over
to her home for beer after working late collecting the last minute tax
returns, and that he made offensively sexual overtures, though complainant
rebuffed his sexual advances. Complainant stated that subsequently,
the supervisor made various innuendos to here, reflecting his interesting
is pursuing a sexual relationship with her; that such overtures ceased
while complainant was dating a co-worker, but recurred following the
end of that relationship. Complainant further claimed that in July 2001,
she was informed by the supervisor that she was no longer a candidate for
window training, and that complainant determined that she believes that
this action was precipitated by complainant's denial of sexual favors.
Complainant states that two weeks prior to her initial EEO contact,
the supervisor again made an innuendo that suggested that she have sex
with him.
The Commission notes that all the claims in the instant complaint and on
appeal address alleged discriminatory harassment. Because complainant's
overall claim alleges harassment that includes matters that extend within
forty-five days of complainant's initial Counselor contact, we find that
the EEO contact was timely with regard to all the matters raised within
the complaint.
Accordingly, the agency's dismissal of the complaint is REVERSED, and
the complaint, as defined herein, is REMANDED to the agency for further
processing consistent 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 (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
January 9, 2003
__________________
Date