01A11075_r
05-24-2001
Marisol Gonzalez, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Marisol Gonzalez v. Department of the Treasury
01A11075
May 24, 2001
.
Marisol Gonzalez,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11075
Agency No. 00-2232
DECISION
On November 22, 2000, complainant timely filed an appeal with the
Commission from a final agency decision dismissing her complaint of
unlawful discrimination on the bases of sex and reprisal for prior EEO
activity in violation of Title VII of the Civil Rights Act, as amended
42 U.S.C. � 2000e et seq. In her complaint, complainant alleged that
the agency discriminated against her by subjecting her to a hostile work
environment and sexual harassment. Specifically, complainant alleged that
since 1997, she was victimized by colleagues' graphic sexual innuendo,
sexual epithets, defamatory rumors, as well as retaliation by the agency
that affected her working conditions.
In a final decision dated October 25, 2000, the agency found that
complainant failed to initiate timely Counselor contact. Specifically,
the agency concluded that complainant had a �reasonable suspicion� of
discrimination as far back as 1997, and no later than 1999, but waited
to initiate Counselor contact on April 27, 2000, well beyond the 45-day
limit for such action.
On appeal, complainant contends that her claim constitutes a continuing
violation that renders her initial Counselor contact timely. Moreover,
complainant argues that she initiated Counselor contact in May 1999,
with an EEO officer. Further, complainant contends that she was not
provided with proper notice of the 45-day time limitation by the agency.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. The record discloses that the matters raised in the
claims purportedly first occurred in 1997, when complainant contends
that she was exposed to sexually explicit images by her colleagues.
However, in her complaint, complainant asserted that the incidents have
been �constant,� culminating in her awareness of rampant defamatory
sexual rumors regarding herself in April 2000. The Commission has
determined that the normal time limit for contacting an EEO Counselor
may be suspended if a continuing violation is demonstrated. Vissing
v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13,
1989). A continuing violation has been defined as a series of related
acts, one or more of which falls within the limitations period. Valentino
v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark v. Olincraft,
Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied, 434 U.S. 1069
(1978). To establish a continuing violation, one must show a "long-lasting
pattern of like events" similar to a policy of discrimination (albeit
directed against a single individual). Shehedah v. Chesapeake and
Potomac Telephone Co. of Maryland, 595 F.2d 711 ,725 (D.C. Cir. 1978)
(defendant repeatedly provided negative references on former employee).
We find that complainant's claim constitutes a continuing violation of
similar, interrelated incidents of workplace harassment and ridicule,
culminating with the revelation of rampant workplace rumors about
complainant in April 2000. As a result, the Commission finds that the
agency erred by dismissing complainant's claim under the reasonable
suspicion theory when there is a common nexus between the entire span of
incidents alleged in the complaint. See Anisman v. Department of the
Treasury, EEOC Request No. 05A00283 (April 13, 2001). Therefore, we find
complainant's Counselor contact on April 27, 2000, to be timely initiated.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED, and the complaint is hereby REMANDED to the agency
for further processing from the point processing ceased, in accordance
with the ORDER set forth 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 claim 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
May 24, 2001
__________________
Date