01A03776_r
10-30-2001
Patricia F. Mathis , Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia F. Mathis v. United States Postal Service
01A03776
October 30, 2001
.
Patricia F. Mathis ,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03776
Agency No. 1-H-302-0056-97
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated March 28, 2000, dismissing her complaint of unlawful
employment discrimination. The Commission finds that the agency
misdefined the issues raised by complainant and improperly dismissed
complainant's complaint for untimely EEO Counselor contact and untimely
filing of her formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2)
and for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency, in its decision, defined complainant's claim as
�discrimination on the basis of sex (female/sexual harassment) in that
on December 18, 1996, you were given an official discussion by your
supervisor and threatened with discipline for alleged failure to follow
instructions. You contend that the supervisor's actions were instigated
as retaliation for your breakup with him several months prior.�
The Commission recognizes that complainant claims that she was
discriminated against on the bases of sex (female), age (not specified)<1>
and in retaliation for prior EEO activity when:
From January 1995 through December 18, 1996, complainant's supervisor
used his position, complainant's past tardiness, her problems with her
former supervisor and prior EEO activity to pressure complainant into
engaging in sex with him and giving him money. Complainant's supervisor
threatened complainant with discipline when she did not cooperate with
his sexual requests. Additionally, complainant's supervisor talked
about sex in front of complainant and other employees.
In October 1995 complainant was issued a Letter of Warning by her
supervisor. Complainant's supervisor told complainant that he would
not pursue further discipline because complainant �went out with him.�
On December 18, 1996, complainant's supervisor had an official discussion
with complainant for failure to follow instructions and threatened to
fire her. Additionally, he threatened to remove her from the agency
if she left the office without telling him.
In April 1996, complainant informed the manager (finance) of her
supervisor's actions, but management did nothing to stop him from sexually
harassing complainant or other employees.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1614.105(a)(2).
In its decision, the agency dismissed complainant's complaint on the
ground that complainant failed to contact an EEO Counselor within the
prescribed time frame. Specifically, the agency maintained that the
claimed discriminatory events occurred between January 1995 and January
1996. At the beginning of its March 28, 2000 decision, however, the
agency states that the claimed discrimination, the �official discussion,�
occurred on December 18, 1996.
A review of the record discloses that the claimed discriminatory events,
as detailed above by the Commission, occurred between January 1995 and
December 18, 1996. Complainant contacted an EEO Counselor on December 26,
1996, which was within the requisite time period for at least one claimed
incident of harassment, the �official discussion� on December 18, 1996.
Therefore, we find that the agency improperly dismissed complainant's
complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2).
Regarding the filing of complainant's formal complaint, the agency
asserts that a Notice of Right to File dated November 12, 1997, was sent
to complainant by certified mail. The certified letter was returned to
the EEO Office and a second Notice of Right to File, dated December 18,
1997, was sent to complainant at the same address by regular mail with
a certificate of mailing to verify the mailing on that date; however,
there is no evidence in the record indicating that complainant received
either Notice of Right to File. Complainant claims that she did not
receive the Notice of Right to File until January 30, 1998. Under the
instant circumstances, we cannot find that complainant's complaint,
filed on February 6, 1998, was untimely filed.
Finally, the agency dismissed complainant's complaint for failure to
state a claim, concluding that complainant was not aggrieved by the
discussion with her supervisor on December 18, 1996. Examining the
claims as redefined above, we find that complainant raises a claim
of sexual harassment that was sufficiently severe or pervasive to
alter the conditions of her employment, and therefore her complaint
was improperly dismissed for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1).
The agency's decision to dismiss complainant's complaint was improper,
and is hereby REVERSED. The complaint, as defined herein, is REMANDED
to the agency for further processing in accordance with this decision
and 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
October 30, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1With her complaint, complainant submitted an attachment to the Notice of
Right to File and included age as a basis for the claimed discrimination.