01991399
02-09-2000
Charlene Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charlene Brown, )
Complainant, )
)
v. ) Appeal No. 01991399
) Agency No. 1D-271-0013-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated October 21, 1998
dismissing a portion of the complaint (alleging specific incidents of
sexual harassment) for untimely EEO Counselor contact is proper pursuant
to 64 Fed. Reg. 37,644, 37656 (to be codified as and hereinafter cited
as 29 C.F.R. � 1614.107(a)(2)).<1> Although direct appeals of decisions
partially dismissing a complaint are no longer permissible under the
regulations revised on November 9, 1999, the agency has informed the
Commission that the remainder of the complaint was the subject of an
agency decision on June 18, 1999. Therefore, we shall consider the
instant appeal because there are apparently no remaining claims from
the instant complaint pending anywhere in the administrative EEO process.
Complainant should have reasonably suspected discrimination at the time
of the incidents listed in claims 1 - 6 (occurring from February 1997
through December 1997) which were more than 45 days prior to complainant's
initial EEO Counselor contact on March 2, 1998.
The Commission recognizes that the instant complaint is one claim
of sexual harassment; nevertheless, complainant is still obligated
to contact an EEO Counselor within 45 days of when she should have
reasonably suspected discrimination. The alleged incidents in claims
1 - 6 were of such a nature (e.g, asked by her supervisor to have sex
with her supervisor) that complainant should have reasonably suspected
discrimination at the time of the incidents. The incidents were not
so trivial such that complainant could have not appreciated that the
incidents constituted harassment and rendered her aggrieved at the time
of the incidents. Complainant is entitled to have the most recent 45
days of harassment accepted as timely by the agency (which the agency did
accept for investigation) and the untimely claims should be considered as
background information which complainant can use to aid her in her attempt
to show harassment, but for which complainant can not be remedied.
Complainant has failed to show that she was unable to contact an EEO
Counselor in a timely manner. For instance, although complainant claims
that the EEO office did not answer her telephone calls, she also admits
that she did receive recorded messages when she called. Complainant has
not claimed that she was unable to contact the EEO office by leaving a
telephone message, sending an electronic mail message, sending a letter
or facsimile, or by visiting the EEO office (or EEO Counselor) in person.
The agency's decision dismissing a portion of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
February 9, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ 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.