Marilyn J. Anderson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 9, 2003
01A22348_r (E.E.O.C. Jan. 9, 2003)

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