01991686
02-09-2001
Adriene D. Chapman v. United States Postal Service
01991686
February 9, 2001
.
Adriene D. Chapman,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991686
Agency No. 4-K-200-0717-98
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).<1> The record shows
that complainant sought EEO counseling on May 5, 1998, claiming that
she had been discriminated against on the basis of sex. Subsequently,
complainant filed a formal complaint claiming that she had been
discriminated against on the bases of sex, age, and disability when:
(1) in August 1997, postal inspectors were called because she was accused
of stealing a bait money order and a missing Cal Ripken picture;
(2) between 1995-1996, her supervisor rated her work performance as
�poor� for the Associate Supervisor Program;
(3) in 1996, she was released as facilitator for achieving excellence
training;
(4) on November 1, 1995, she was denied union representation;
(5) on February 8, 1997, she was given Leave without Pay (LWOP) instead
of the sick leave she had requested;
(6) on July 17, 1997, she was denied leave under the FMLA;
(7) on July 30, 1997, she was falsely accused of stealing $60.00;
(8) on August 1, 1997, she was placed on emergency leave for an indefinite
period; and
(9) on September 10, 1997, she was issued a notice of removal effective
October 17, 1997, for unsatisfactory work performance.
Complainant claimed that after she rejected her Postmaster's sexual
advances that began in May 1995, he engaged in a pattern of discrimination
and harassment against her.
The agency dismissed the complaint for untimely EEO Counselor contact.
On appeal, complainant claims that she learned at her church about her
EEO rights, in April and May 1998.
The record contains an EEO Investigative Affidavit, executed by the
Postmaster which states that an EEO poster, with applicable time limits,
has been posted at the premises since May 1995.
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 record shows that the agency has indeed provided an affidavit
which states that an EEO poster, with applicable time limits, has been
at the premises since May 1995. However, the Commission notes that the
affidavit was executed by the Postmaster who is allegedly responsible
for numerous acts of discrimination raised in the instant complaint.
Given the specific circumstances of this case, we are therefore unable to
ascertain whether complainant was apprized of the limitation period for
timely contacting an EEO Counselor. Accordingly, the agency's dismissal
of the complaint is VACATED. The complaint is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency is ORDERED to conduct a supplemental investigation to ascertain
whether complainant had been informed of the necessity for initiating
contact with an EEO Counselor and the time limits for doing so, and when
and how complainant had been so informed. The agency shall include, if
available, any affidavits prepared by parties other than the Postmaster
who prepared the affidavit addressed in this decision.
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue a final decision or notify complainant
that the agency is processing her complaint.
A copy of the new final agency decision or notice of processing 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
February 9, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.