01993673
11-05-1999
Carol Naughton, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Carol Naughton v. Department of Justice
01993673
November 5, 1999
Carol Naughton, )
Appellant, )
)
v. ) Appeal No. 01993673
) Agency No. P-98-9485
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On June 19, 1998, the appellant filed a formal complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. In her complaint,
the appellant alleged that she was subjected to sexual harassment on
the basis of sex (female) by her supervisor.
In her complaint the appellant stated that her supervisor started making
sexual comments to her around September 1997. The appellant stated that
the last comment made to her was during the week of April 13, 1998.
The record shows that the appellant initially contacted an EEO counselor
on May 18, 1998. By letter dated September 23, 1998, the agency requested
that the appellant respond with a written explanation for her delay in
contacting an EEO counselor within 45 days of the 1997 and early 1998
alleged incidents. By fax dated October 13, 1998, the appellant responded
to the agency's inquiry. The appellant stated that after three months of
taking the comments from her supervisor, she had enough and approached
her business manager who suggested that she speak to an EEO counselor.
The appellant averred that she met with an EEO counselor on October 30,
1997, and explained that she did not want to get off on the wrong foot
with her new supervisor. The appellant further stated that the harassing
incidents continued and that she finally filed a formal complaint.
On March 31, 1999, the appellant through her attorney, filed an appeal
with this Commission from the agency's letter dated November 19, 1998,
informing the appellant that the agency had accepted one incident of her
complaint for investigation. The letter further informed the appellant
that its EEO Complaints Section had analyzed her complaint and determined
that it did not meet the standard of a continuing violation, however, the
agency stated that the incidents may be used as background information
as they relate to the accepted issue. Additionally, the agency stated
that "[i]f you still wish to pursue these incidents, a recommendation of
dismissal will be sent to the Director of the EEO staff for the Department
of Justice for failure to contact an EEO counselor timely." The letter
further informed the appellant to respond in writing within fifteen (15)
calendar days after receipt if she did not agree that her complaint was
correctly identified. The letter did not give the appellant any appeal
rights which is the appellant's stated reason for the delay in filing
her appeal to this Commission. There is no evidence in the record that
the appellant responded to the agency's November 19, 1998 letter.
We find that the agency's November 19, 1998 letter was tantamount to
a constructive dismissal of certain allegations which comprised the
appellant's sexual harassment claim while failing to provide her with the
regulatory notice of appeal rights. The agency is reminded that it has
an obligation to develop adequate factual records and to issue decisions
that are consistent with acceptable legal standards and to explain the
reasons for its decisions. See 29 C.F.R. � 1614.104(b). We further
find that the record shows that the appellant has filed a timely sexual
harassment complaint, and that the incidents which occurred in 1997 and
early 1998 are timely raised as part of her sexual harassment claim.
Accordingly, we REMAND the appellant's entire complaint to the agency for
further processing in accordance with applicable laws and regulations.
ORDER (E1092)
The agency is ORDERED to process all of the allegations in the remanded
complaint in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
within thirty (30) calendar days of the date this decision becomes final.
To the extent it has not already done so, the agency shall consolidate
the remanded allegations with the accepted one, and investigate them as
evidence in support of her sexual harassment claim. The agency shall
issue to appellant a copy of the investigative file and also shall
notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations