Abbi G. Davidson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 11, 2001
01A13315_r (E.E.O.C. Dec. 11, 2001)

01A13315_r

12-11-2001

Abbi G. Davidson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Abbi G. Davidson v. United States Postal Service

01A13315

December 11, 2001

.

Abbi G. Davidson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A13315

Agency No. 4G-752-0180-01

DECISION

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 Counselor contact.

The record discloses that complainant alleged a continuing violation of

Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42

U.S.C. � 2000e et seq., by claiming that she was the victim of unlawful

employment discrimination on the basis of sex when she was subjected

to a hostile work environment from 1995 through December 8, 2000.

Complainant initiated contact with an EEO Counselor December 19, 2000.

In her formal complaint, complainant addresses describes a series

of alleged discriminatory events occurring from June, 1995 through

December 8, 2000.<1> Some of the incidents included unsolicited remarks

with sexual connotations; unwelcome touching and stroking of her hair;

kissing on her neck; leaving of offensive sexual material on her desk;

and repeatedly being told by an agency employee about an adulterous

affair he was having.

In its final decision, the agency determined that the alleged

discriminatory events occurred only from 1995 through July 2000, and

dismissed the complaint on the grounds that complainant's initial EEO

Counselor contact of December 19, 2000, was untimely.

As a preliminary matter, the Commission notes that contrary to the

agency's determination in its final decision, the record reflects that

complainant claims that she was sexually harassed from 1995 through

December 2000, and not through July 2000 as determined by the agency.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain claims within a complaint when

the complainant alleged a continuing violation; that is, a series of

related discriminatory acts, one of which fell within the time period

for contacting an EEO Counselor. See Reid v. Department of Commerce,

EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States

Postal Service, EEOC Request No. 05901150 (December 28, 1990). Moreover,

the Commission has held that evidence showing that a complainant had,

or should have had, a reasonable suspicion of discrimination more than

45 days prior to initiating EEO Counselor contact, will not preclude

acceptance of an otherwise timely claim of ongoing discrimination.

Anisman v. Department of Treasury, EEOC Request No. 05A00283 (April

12, 2001).

Upon our review of the record, we determine that complainant has alleged

a continuing violation. Specifically, complainant addresses a series

of offensive incidents of a sexual nature that commenced in 1995 and

which continued within forty-five days of her initial EEO Counselor

contact in December 2000. Moreover, the Commission has previously held

that an agency should not ignore the pattern aspect of a complainant's

claims and define the issues in a piecemeal manner where an analogous

theme unites the matters. See Drake v. Department of the Air Force, EEOC

Request No. 05970689 (March 29, 1999). Here, complainant alleges that

sexual harassment began in 1995 and continued through December 8, 2000,

shortly before she resigned and within two weeks of the time that she

first contacted an EEO Counselor. Her EEO contact is therefore timely.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. 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

December 11, 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

______________________________

1 The record reflects that complainant resigned from agency employment

on December 17, 2000.