01a02623
08-04-2000
Carol L. Witherspoon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/West Region), Agency.
Carol L. Witherspoon v. United States Postal Service
01A02623
August 4, 2000
.
Carol L. Witherspoon,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific/West Region),
Agency.
Appeal No. 01A02623
DECISION
On February 11, 2000, complainant filed a timely appeal with this
Commission from a final agency decision dismissing 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.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
On October 1, 1999, complainant initiated contact with an EEO counselor
regarding claims of discrimination on the basis of sex (female). In her
request for counseling, complainant alleged that, on August 28, 1999,
her supervisor followed her on his motorcycle in a white t-shirt during
her route while writing things down on a piece of paper. She stated
that this was �just one example of numerous similar incidents.�
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on December 13, 1999, complainant filed a formal complaint,
alleging that she had been subjected to discrimination on the basis
of sex. Complainant did not specify her allegations of discrimination in
the complaint, but she noted that a possible reason for her supervisor's
actions was her refusal to be friends. She also stated that this was
�only one of many such incidents.�
On January 14, 2000, the agency issued a final agency decision dismissing
the complaint. The agency framed the complaint as follows:
When on August 28, 199[9], which is one of many such incidents
[unspecified], her supervisor created a hostile work environment by
observing her making deliveries while riding his motorcycle in a white
T-shirt and writing on a piece of paper.
The agency only addressed the alleged motorcycle incident occurring on
August 28, 1999, and found that this did not cause a personal deprivation
of any employment benefit. Accordingly, the agency dismissed the
complaint for failure to state a claim under 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)).
On appeal, complainant submits three signed statements of narrative
descriptions of incidents, allegedly occurring from August 1997 through
July 24, 1999, which expand upon the alleged motorcycle incident involving
her supervisor. Specifically, complainant alleges that she was subjected
to sex-based harassment, which created a hostile work environment, when
her supervisor drew a knife out of his pocket in a push cart incident,
repeatedly made remarks about her dress, and placed his desk in a position
where he could view her from the rear, in addition to observing her
making deliveries.
We note that according to the Counselor's Report, complainant did not
specify the other incidents giving rise to her claim of harassment during
counseling. The record does reflect, however, that complainant told
the counselor that there were other incidents, but that the counselor
apparently did not ask her to elaborate. It appears, therefore,
that the counselor failed to provide complainant with the degree of
counseling that would have elicited a fuller explanation. It is the
responsibility of the EEO counselor to clearly define issues at the
counseling stage, under EEOC Management Directive (MD) 110. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), 2-4 (November 9, 1999). After a careful review of the record, we
find that the incidents described by complainant, including the incident
discussed with the EEO counselor and the incidents described on appeal,
state a claim of harassment on the basis of sex.
Accordingly, the agency's dismissal of the complaint for failure to
state a claim was improper and is REVERSED and the complaint REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claim 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 4, 2000
__________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.