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).