Deborah Treschitta, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionJan 13, 2000
05990600 (E.E.O.C. Jan. 13, 2000)

05990600

01-13-2000

Deborah Treschitta, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Deborah Treschitta v. Department of Transportation

05990600

January 13, 2000

Deborah Treschitta, )

Complainant, ) Request No. 05990600

)

v. ) Appeal No. 01982729

)

Rodney E. Slater, ) Agency No. 5-98-5015

Secretary, )

Department of Transportation, )

(Federal Aviation Administration), )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION<1>

On June 18, 1998, Deborah Treschitta ("complainant") timely

initiated a request to the Equal Employment Opportunity Commission

("the Commission") to reconsider the decision in Deborah Treschitta

v. Department of Transportation, EEOC Appeal No. 01982729 (March

26, 1999). EEOC regulations provide that the Commission may, in

its discretion, reconsider any previous Commission decision. See 64

Fed. Reg. 37,644 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R.. �1614.405(b)). The party requesting reconsideration

must submit written argument or evidence which tends to establish one

of the following two criteria: (1) the previous decision involved a

clearly erroneous interpretation of material fact or law; or (2) the

decision will have a substantial impact on the policies, practices,

or operations of the agency. 29 C.F.R.. �1614.405(b). For the reasons

set forth herein, complainant's request is granted.

ISSUES PRESENTED

The issues presented herein are whether the previous decision properly

dismissed complainant's appeal for untimely EEO Counselor contact.

BACKGROUND

At some point in 1996, complainant contacted an EEO Counselor to seek

advice regarding her concerns of gender discrimination. Apparently,

complainant asked the EEO Counselor not to step-in or attempt to resolve

her complaint because she was attempting to informally resolve the issues.

On July 15, 1997, complainant contacted a second EEO Counselor and filed

her current complaint which included the allegations discussed with

the first EEO Counselor. The agency dismissed the five allegations

occurring in 1996, for failure to timely file a formal complaint.

Complainant appealed and our previous decision affirmed the agency's

decision. However, the previous decision dismissed the allegations

for failing to initiate EEO counseling within 45 days of the alleged

discrimination. The previous decision held that while complainant

contacted an EEO Counselor within the relevant time frame, she did

not exhibit an intent to begin the complaint process because she

requested that the EEO Counselor not intervene. See generally, Gates

v. Department of Air Force, EEOC Request No. 05910798 (November 22, 1991).

Additionally, the previous decision found that complainant failed to

establish a continuing violation because she had a reasonable suspicion

of discrimination in 1996, but failed to timely initiate the EEO process.

On reconsideration, complainant restates her prior arguments that she

exhibited an intent to begin the complaint process when she initially

contacted the first EEO Counselor and that because the agency failed to

issue a Notice of the Right to File a Discrimination Complaint during

her first EEO encounter, she was unable to ultimately express her intent

to pursue the matter. In response, the agency states that the previous

decision properly dismissed complainant's appeal and requests that we

affirm the decision.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that

complainant's request for reconsideration meets the criteria of 29

C.F.R. �1614.405(b). It is therefore the decision of the Commission to

grant the request.

In her complaint dated October 17, 1999, complainant stated that she

had been subject to harassment due to gender. She provided a detailed

account of events she perceived as harassing occurring between the

period of April 1996 to October 1997. While the agency acknowledged

complainant's claim of hostile environment harassment, it proceeded to

break her harassment claim into nine individual allegations, dismissing

the first five allegations for failing to timely file a formal complaint.

We find this course of action inappropriate.

The Commission has consistently held that when confronted with a claim

like this, the agency cannot ignore the pattern aspect of the claim and

define the issue in a piecemeal manner. See Ferguson v. Department of

Justice, EEOC Request No. 05970792 (March 30, 1999); Meaney v. Department

of the Treasury, EEOC Request No. 05940169 (November 3, 1994). By its

nature, a hostile environment harassment claim must set out conduct that

is either severe or pervasive enough to create an environment that a

reasonable person would find hostile or abusive. See Harris v. Forklift

Systems, Inc., 510 U.S. 17, 22 (1993). Moreover, if complainant, as

was done here, asserts a pervasive pattern of discrimination, it is

highly likely that some of the incidents would occur more than 45 days

before the initial EEO Counselor contact. However, so long as at least

one of the incidents occurred within 45 days of the initial contact,

the claim will be considered timely filed. Since the later incidents

described in complainant's complaint occurred within 45 days of her

initial EEO contact, we find that complainant filed a timely claim of

harassment (hostile environment) involving incidents spanning over a 18

month period. As such, the agency's breaking the claim into separate

allegations was incorrect.<2>

While there is evidence of an EEO Counselor contact in 1996, the record

is unclear as to the substance of the contact. The agency states that the

contact was for the purpose of advice and not to initiate the EEO process.

Complainant contends that her contact should have initiated the EEO

process, but the counselor never provided the notice to file a complaint.

However, in light of our finding that complainant's complaint constitutes

a single claim of harassment encompassing all of the alleged incidents,

we need not address whether complainant initiated the EEO process during

her 1996 EEO contact.<3>

CONCLUSION

Therefore, after a review of complainant's request for reconsideration,

the previous decision, and the entire record, the Commission finds that

complainant's request meets the criteria of 29 C.F.R. �1614.405(b), and

it is the decision of the Commission to GRANT complainant's request.

The decision of the Commission in EEOC Appeal No. 01982729 (March 26,

1999) and the Final Agency Decision are REVERSED. There is no further

right of administrative appeal on the decision of the Commission on a

Request to Reconsider.

ORDER (E1092)

The agency is ORDERED to process complainant's single claim of harassment

in accordance with 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in

some jurisdictions have interpreted the Civil Rights Act of 1991 in a

manner suggesting that a civil action must be filed WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision. To ensure

that your civil action is considered timely, you are advised to file it

WITHIN (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

January 13, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

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:

_________________________

_________________________

1 On 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.

2 For a more detail discussion of fragmentation of claims, see EEOC

Management Directive 110, ch. 5 (November 9, 1999).

3 The parties are reminded, however, that "[t]he Commission consistently

has held that a complainant may satisfy the criterion of EEO Counselor

contact by initiating contact with any agency official logically connected

with the EEO process, even if that official is not an EEO Counselor,

and by exhibiting an intent to begin the EEO process." EEOC Management

Directive 110, 2-1 (November 9, 1999) (emphasis added); see also Allen

v. United States Postal Service, EEOC Request No. 05950933 (July 8,

1996); Washington v. Government Printing Office, EEOC Request No. 05970523

(January 23, 1997).