01a25027_r
08-01-2003
Evelyn E. Henry, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Evelyn E. Henry v. Department of Defense (Defense Commissary Agency)
01A25027
August 1, 2003
.
Evelyn E. Henry,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A25027
Agency No. 02-EA-PG-022
DECISION
The record indicates that complainant filed her complaint alleging that
she was subjected to sexual harassment when: (1) on June 19, 2000, she
was grabbed on her buttocks by an agency employee; and (2) on May 9,
2001, she was �mooned� by another agency employee. The agency issued
its decision, dated August 16, 2002, stating that the complaint failed to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) since complainant
was not an employee of the agency at the time of the alleged incidents.
The agency indicated that complainant was employed as a daytime supervisor
with its contractor, the Brevard Achievement Center (BAC), Rockledge,
Florida. However, there is insufficient evidence in the record as to
whether complainant was, in fact, not an agency employee under Title VII.
Thus, the Commission cannot determine whether the complaint fails to
state a claim, and the matter is remanded so that the agency can provide
with information to determine complainant's employment status under Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998).
In its decision, the agency also dismissed claim (1) due to untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
indicated that complainant contacted an EEO Counselor with regard to
her complaint on September 1, 2000, which was beyond the 45-day time
limit set by the regulation. However, complainant contended that she
was not provided with any information as to how to file a complaint
within the agency from the agency.<1> The Commission has held that
constructive knowledge will be imputed to an employee when an employer
has fulfilled its obligation of informing employees of their rights and
obligations under Title VII. Thompson v. Department of the Army, EEOC
Request 05910474 (September 12, 1991). However, the record is devoid
of any evidence as to whether complainant had constructive notice of
the time limit (e.g., through the agency's posting of EEO information
including the requisite time limit to contact an EEO Counselor).
Accordingly, the agency's decision is hereby VACATED. The complaint is
REMANDED for further processing in accordance with the Order below.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ordered to investigate whether complainant was an
employee of the agency. Specifically, the agency shall include in the
record as to whether the agency was responsible for hiring and termination
of complainant's employment at the agency, and whether the agency was
responsible for the payment of complainant's salary, payroll taxes,
and appropriate fringe benefits (i.e., providing annual, sick, holiday
or other leave, medical insurance, retirement benefits, or temporary or
long term disability benefits). Based on the foregoing information, the
agency, within thirty (30) days of the date this decision becomes final,
shall issue a new decision or notice of acceptance of the complaint.
A copy of the new agency decision or notice of acceptance of the complaint
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
August 1, 2003
__________________
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
______________________________
1This contention was raised by complainant in her amended complaint to
United States District Court, Northern District of Florida, Pensacola
Division (Case No.: 3:01CV240LAC/MD); the original court complaint was
filed on June 26, 2001. It is noted that on February 14, 2002, the court,
upon complainant's request, dismissed this civil action without prejudice.