01A21331_r
09-10-2002
Virginia Hanratty, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Virginia Hanratty v. Department of Defense (DECA)
01A21331
September 10, 2002
.
Virginia Hanratty,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A21331
Agency No. DCWP20010024
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 15, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The record reveals that during the relevant time, complainant was
employed as a part-time Sales Store Checker, GS-2091-03 at the agency's
DeCa Naval Air Station North Island Commissary. Believing that she was
the victim of discrimination based on sex and age, complainant contacted
the EEO office on May 18, 2001. Informal efforts to resolve her concerns
were unsuccessful.
On July 2, 2001, complainant filed a formal complaint. Therein,
complainant alleging that she was the victim of unlawful employment
discrimination on the bases of sex and age. In her formal complaint,
complainant asserted that she was not aware of the time limit for
contacting a Counselor. Complainant's claims were identified in the
following fashion:
1. due to an ongoing sexual-charged work environment, her opportunities
for promotion, advancement and benefits were adversely affected;
2. in 1998, she was not chosen for one of the three full-time positions
because her Supervisor told her "You were only a baby;"
3. she was denied opportunities to apply for positions because they
were never posted;
4. new hired workers have been working a regular 40-hour week during
normal day shift leaving her and other shift workers to work the late
shift everyday and on weekends. Complainant volunteered to work 40
hours a week but her offer was denied;
5. in October 2000, a Customer Service Clerk GS-4 was not posted and
filled by a lesser qualified person;
6. a Store Worker WG-4 position became available and she did not apply
for the position because it was never posted;
7. the Commissary Officer assigned permanent part-time employees less
work hours in violation of the Negotiated Labor Agreement in favor of
permanent intermittent on-call employees;
8. her Supervisor informed her that the Commissary Officer told him
that if there are any more complaints, he was going to give them their
resignation papers. Complainant claims the Commissary Officer told
dissatisfied workers to quit;
9. she was deprived of opportunities to apply for positions because it
is common practice not to post job announcements;
10. management withheld her SF-50 form and it caused her to miss
opportunities to apply for positions;
11. a co-worker not entitled to commissary privileges was seen shopping
at NASNI Deca Commissary;
12. in September 1999, complainant was told by a janitor he saw the
Commissary Officer and his secretary in the Commissary Officer' s office,
so they changed the lock and remodeled the office;
13. since 1997 to present, the Commissary Officer and his secretary go
out for lunch in his car;
14. the Commissary Officer put his arm around her and squeezed her
shoulders close to him; and
15. in February 2001, when her son called her at work and the telephone
in the Customer Service was not working. A co-worker told complainant
to use the phone in the MSC office. Following her phone conversation
with her son, the co-worker opened his zipper and exposed himself to
her and grabbed her.
In its FAD dated October 15, 2001, the agency dismissed the complaint
on the grounds of untimely EEO Counselor contact.
On appeal, complainant reiterates that she was not aware of the 45-day
time limitation for contacting an EEO Counselor.
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.
The record contains an EEO Counselor's report wherein the EEO Counselor
indicated that a poster regarding the procedures for processing complaints
of discrimination dated January 1999, and a memorandum regarding EEO
and the Prevention of Sexual Harassment dated April 6, 2000, were
posted on the bulletin board where complainant worked. The Counselor
further indicated that the official bulletin board contained a poster
dated August 2000, regarding the procedures for processing complaints
of discrimination. It claimed that the information included the EEO
Counselor's names and telephone numbers. Furthermore, the Counselor
indicated that on April 5, 1999, complainant signed a sign-in sheet
regarding the Sensitivity/Prevention of Sexual Harassment training.
The Commission has consistently held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness. Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
The agency has not met this burden. The agency does not provide any
evidence in the record that EEO posters containing the time limit for
initiating EEO contact were on display in complainant's work facility,
either by providing a copy of any EEO posters or by providing an
affidavit describing the location of the posters during the relevant
time period. Nor does it provide persuasive evidence that complainant
was otherwise notified of the procedures for filing an EEO complaint
at any time during her employment with the agency. Clearly, it is
the burden of the agency to have evidence or proof to support its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Accordingly, the agency's decision
is REVERSED and the complaint 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
September 10, 2002
__________________
Date