01A15301_r
01-02-2003
Tiffany Meadows, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Tiffany Meadows v. Department of Transportation
01A15301
January 2, 2003
.
Tiffany Meadows,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A15301
Agency No. 2-01-2079
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated August 16, 2001, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The agency defined complainant's
complaint as alleging discrimination on the bases of sex, disability,
and in reprisal for prior EEO activity, when:
On February 1, 2001, management denied complainant's request to be
assigned other duties while he considered complainant's request for a
transfer to Bay 3;
Despite complainant having advised management in May 2000 of her need
to receive certification training, her request was not honored until
October 2000; and
During a meeting on February 1, 2001, Management failed to address
complainant's allegations of harassment.
The agency dismissed issue (1), pursuant to the regulation set forth
at 29 C.F.R. � 1614.107(a)(2), for failure to raise the issue with an
EEO Counselor. The agency dismissed issues (2) and (3) for untimely
EEO Counselor contact. The agency noted that complainant previously
contacted an EEO Counselor on December 18, 2000, regarding allegations of
harassment; however, no EEO complaint was filed at this time. The agency
stated that, at the latest, issue (2) occurred on October 31, 2000;
however, complainant did not contact an EEO Counselor until December 18,
2000, which was beyond the applicable limitations period.
On appeal, complainant states that her complaint involved an allegation
that she was subjected to a hostile work environment from January 2000
through April 4, 2001, as a result of the offensive behavior by male
co-workers against her notwithstanding her attempts to contact management
about the working conditions.
The record contains a copy of the EEO Counselor's report stating that
complainant alleges she was denied training because she spoke out about
the hostile environment and harassment she faced. The report also
states that complainant alleged that complainant's supervisors did not
take her complaints seriously and states that complainant claims that
she was singled out because she spoke out about the hostile environment
she endured. As a remedy for her complaint, complainant requested a
transfer to Bay 3 and restoration for all leave taken as a result of
the harassment she endured.
In a formal complaint dated April 2, 2001, complainant describes the
alleged harassment she received from two male controllers beginning in
January 2000. Complainant claims that the two controllers subjected
her to intimidating comments, referred to her using sexually stereotyped
names, and would discuss her relationship with her husband. Complainant
details her contact with management regarding the alleged hostile work
environment and the failure of management to remedy the situation.
Complainant also alleges that her supervisor (S1) contributed to the
hostile work environment. Complainant states that S1 was her supervisor
from March through September 2000, and she claims that S1 yelled at
her, denied her training, failed to give her a midterm evaluation, and
monitored her breaks. Complainant acknowledges that she contacted an
EEO Counselor on December 18, 2000, to file a �preliminary complaint.�
Complainant explains that on December 21, 2000, she met with management to
discuss her request for a transfer to Bay 3 as a result of the harassment
and was advised that her transfer request was denied. Complainant states
that following this meeting she was unable to function at work and filed
an OWCP claim. Complainant states that on February 1, 2001, she met with
management to discuss her return to work and again request a transfer to
Bay 3. At this meeting, complainant requested to be assigned other duties
while she awaited an answer on her transfer request but was told she
could not be assigned other duties and was told she could work in Bay 5.
Upon review, we find that the agency improperly defined complainant's
complaint. Based on a review of the record, we find that complainant's
complaint involved a claim that she was subjected to a hostile work
environment which was still ongoing 45 days prior to her initial EEO
contact on December 18, 2000. The incident described by the agency in
claim 1 is related to her claim of harassment which was raised with an EEO
Counselor. Therefore, we find that this incident was improperly dismissed
under � 1614.107(a)(2). Although the agency indicates that complainant
did not pursue EEO counseling stemming from the December 18, 2000 contact,
the agency has failed to show that it informed complainant that it was
ceasing processing her counseling. Therefore, we find that because
the record shows that complainant made contact with an EEO Counselor on
December18, 2000, we find that her claim of harassment was timely raised.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the complaint, as redefined in this decision,
is REMANDED for further processing in accordance 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 2, 2003
__________________
Date