01997092_r
03-14-2001
Lenee M. Sweeney, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lenee M. Sweeney v. Department of Veterans Affairs
01997092
March 14, 2001
.
Lenee M. Sweeney,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997092
Agency No. 99-3080
DECISION
Complainant filed a timely appeal with this Commission from an agency's
September 2, 1999 decision to dismiss 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. In its decision,
the agency found that complainant raised one issue with her counselor -
being placed on a Performance Improvement Plan (PIP) on the basis of sex.
In her formal complaint, however, the agency found that complainant
raised �sexual harassment� occurring on March 26, 29, and 30, 1999.
The agency dismissed the sexual harassment claims for not being
raised with her EEO Counselor. The agency noted that the PIP issue
was resolved when complainant was transferred to another division;
her formal complaint stated, �I have already been reassigned. I am
happy with that.� The agency suspected complainant was attempting to
substitute claims not raised with an EEO Counselor for her now resolved
complaint concerning the PIP. Additionally, the agency found that the
dates complainant provided for the sexual harassment occurred more than
forty-five days prior to complainant's initial EEO Counselor contact.
Therefore, the agency also concluded that the claims were untimely raised.
On appeal, complainant argues that she informed the counselor both
verbally and in writing of the sexual harassment she has endured from
her supervisor. She contends that the supervisor �propositioned� her
on two occasions, and placed her on a PIP because she rebuffed his
sexual advances. Complainant notes that although she was transferred
away from the supervisor, the problem has not been solved. She notes
that her title, classification, and grade have not been addressed,
and she has been placed on detail rather than in a permanent reassignment.
The Counselor's Report indicates that complainant made her initial
counselor contact on June 14, 1999. The report indicates that
complainant was informed at a June 11, 1999 meeting that she was being
placed on a PIP. The report also notes that complainant and the agency's
representative met to discuss �what was going on and how [the supervisor]
. . . treated [complainant]. The [agency representative] informed
[complainant] that she would be moved.�
Complainant's handwritten notes were attached to the Counselor's Report.
These notes, in relevant part, indicate:
November 1998 - [Supervisor] constantly staring at my rear end. He makes
me very uncomfortable.
December 1998 - Staring at my chest and rear end. He makes me very
uncomfortable.
January 1999 - Constant staring at my butt and chest.
March 26, 1999 - [In a meeting with the supervisor] he touched my arm[,]
patting it. He then went on to say �I usually get what I want. I usually
win these things.' I do not know what he meant.
March 29, 1999 - [Supervisor called complainant at home, asking questions
about a time card] he had no business or reason to call me at home.
March 30, 1999 - [Supervisor called complainant in for counseling.] He
was telling me he was not satisfied with my performance. Then he said,
�I usually get what I want.'
April 4, 1999 - [Supervisor approached complainant, and criticized
her about mishandling a call]. Told me maybe I need to go back to
finance. . . I told him that would be fine with me.
April 21, 1999 - [Supervisor] would call my extension and say someone
is on the line for you there would be nobody there when I answered.
April 22, 1999 - [In meeting with division, supervisor announced]
�everybody is passing with the exception of one. That employee will be
put on a PIP.' (Same statement repeated in May 28, 1999 meeting).
June 11, 1999 - [supervisor met with complainant concerning mid-term
appraisal] He then said I needed to be put on a PIP.
ANALYSIS AND FINDINGS
The agency may dismiss complaints raising matters that have not been
brought to the attention of an EEO Counselor, and are not like or related
to the counseled matters. See 29 C.F.R. � 1614.107(a)(2). A later claim
or complaint is "like or related" to the original complaint if the later
claim or complaint adds to or clarifies the original complaint and could
have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (March 8, 1990).
The record reveals that complainant clearly made the EEO Counselor aware
of numerous hostile work environment incidents. Complainant submitted a
detailed document describing a pattern of harassment. Complainant claims
that this harassment culminated in the supervisor placing her on a PIP.
Accordingly, the dismissal for not raising the matter with an EEO
Counselor was improper.
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.
Complainant is not alleging a series of claims, but rather a single
overriding claim of harassment, culminating in complainant being placed
on a PIP. Complainant sought counseling within forty-five days of being
placed on the PIP. Therefore, when her claim is properly identified,
it clearly was timely raised with the EEO Counselor.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the complaint is
REMANDED for further processing.
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
March 14, 2001
__________________
Date