01a03599
01-25-2001
Jacquelyn S. Militello, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Jacquelyn S. Militello v. Department of Transportation
01A03599
January 25, 2001
.
Jacquelyn S. Militello,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A03599
Agency No. DOT 1-00-1140
DECISION
Upon review, the Commission finds that the agency's decision dated March
16, 2000, dismissing claims (1) through (4) in complainant's complaint
due to untimely EEO counseling and claims (5) through (7) for failure
to state a claim is improper pursuant to 29 C.F.R. �� 1614.107(a)(1)
and (2), respectively. In her complaint, complainant alleged that she
was subjected to harassment and a hostile work environment when: (1)
in January 1998, she received a letter of admonishment from an agency
managerial official which was subsequently rescinded; (2) in September
1998, the official insisted that she type up a list of names, which she
later learned did not need typing; (3) on October 7, 1998, she was asked
by the official to complete a report she had previously not done before;
(4) more than two years ago, the official made derogatory remarks; (5)
on September 24, 1999, she called in sick and was later told by a third
party that when the official learned that she had called in sick he
used profanity and name calling towards her; (6) on February 7, 2000,
the official requested and insisted that she complete an assignment
per a fax received; and (7) on February 14, 2000, when she was working
on returning some equipment and left the boxes outside her door, the
official placed the boxes in the back and told her that the boxes must
be delivered, opened and picked up in the back.
With regard to claims (5) through (7), the agency, in its decision, stated
that they failed to state a claim since complainant was not aggrieved
as a result of the alleged incidents. Upon review of the complaint,
the Commission finds that the agency is improperly piecemealing the
subject claims. The Commission has previously held that an agency
should not ignore the "pattern aspect" of a complainant's claims and
define the issues in a piecemeal manner where an analogous theme unites
the matters complained of. Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (November 3, 1994). The Commission finds that claims
(5) through (7) concerning the discriminating official making derogatory
remarks, assigning complainant a heavy workload, and interrupting her
work, state a cognizable claim under the EEOC Regulations. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
With regard to claims (1) through (4), the agency, in its decision,
stated that complainant failed to establish a continuing violation.
The record indicates that the alleged incidents occurred on or prior
to October 7, 1998, but complainant did not contact an EEO Counselor
until October 21, 1999, which was beyond the 45-day time limitation.
After a review of the record, the Commission finds that complainant's
timely claims (5) through (7) were clearly interrelated to claims (1)
through (4), which fell outside the 45-day time limitation. Thus, the
Commission finds that complainant established a continuing violation with
regard to her complaint, and her EEO Counselor contact with regard to
claims (1) through (4) was timely. See Howard-Grayson v. United States
Postal Service, EEOC Request No. 05990160 (December 3, 1999).
The agency's decision is hereby REVERSED. The complaint is REMANDED
for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
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
January 25, 2001
__________________
Date