Emily M. McCoy, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 12, 2000
01a00514 (E.E.O.C. Apr. 12, 2000)

01a00514

04-12-2000

Emily M. McCoy, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Emily M. McCoy, )

Complainant, )

)

v. ) Appeal No. 01A00514

) Agency No. 1E-871-0029-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On October 22, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

October 18, 1999, pertaining to her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of sex (female) and physical disability (left wrist)

when complainant was harassed by her supervisor on various occasions

by not notifying her of stand up talks, giving her discussions on her

performance and use of sick leave, using body language to intimidate her.

The agency dismissed her complaint pursuant to Volume 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �

1614.107(a)(2)), which states that the agency shall dismiss a complaint

or a portion of a complaint that fails to comply with the applicable time

limits contained in 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.105); 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.106); and � 1614.204(c), unless the agency extends the time limits

in accordance with �1614.604(c).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within forty-five

(45) days of the date of the matter alleged to be discriminatory or, in

the case of a personnel action, within 45 days of the effective date of

the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency

or the Commission to extend the time limit if the appellant can establish

that appellant was not aware of the time limit, which complainant did not

know and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence, complainant

was prevented by circumstances beyond his control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

The Commission has adopted a �reasonable suspicion� standard, as opposed

to a �supportive facts� standard, to determine when the limitation period

is triggered. See Ball v. United States Postal Service, EEOC Request

No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)

- the predecessor of 29 C.F.R. �1614.105(a)(1)).

In its FAD, the agency stated that complainant's complaint alleges

discrimination when from March 3-10, 1999, she was harassed by her

supervisor. The FAD found that complainant contacted the EEO counselor on

June 11, 1999, forty-eight (48) days after the requisite forty-five (45)

day time limit expired. Upon review of the record, the Commission finds

that complainant alleged that complainant contacted the EEO counselor

by letter dated June 4, 1999, regarding an incident on May 27, 1999,

between complainant and her supervisor. Complainant further alleged in

her letter that her supervisor had harassed on previous occasions but

she failed to file an EEO complaint at that time. The EEO counselor's

report indicates that the alleged incidents occurred on March 3, 1999

and March 5, 1999. When complainant filed her formal complaint, she

failed to indicate the dates of the incidents. The Commission finds that

complainant sought counseling on June 4, 1999, based on an incident which

occurred on May 27, 1999. Therefore, we find that complainant contacted

the EEO counselor within forty-five (45) days of the latest incident of

harassment. Accordingly, the Commission finds that complainant contacted

the EEO office in a timely manner as to the latest incident of alleged

harassment and the agency's dismissal of her claim was improper.

As to complainant's allegations of past harassment, we find that the

claims were properly dismissed as untimely, we note that this finding does

not relieve the agency of its responsibility to thoroughly investigate

all the circumstances that may be relevant to complainant's overall

claim of discrimination. See Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-7 (November 9, 1999).

This means that, to the extent they are probative of complainant's

overall hostile work environment claim, the claims must be investigated

as background evidence. See Silva v. U.S. Postal Service, EEOC Request

No. 05960115 (June 20, 1996).

Accordingly, the decision of the agency was improper and is REVERSED

and REMANDED for further processing in accordance with this decision

and the proper regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claims 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 claims 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 an

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

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); 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

April 12, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.