01985397
05-06-2000
Linda O. Smith, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Linda O. Smith v. Department of the Air Force
01985397
May 6, 2000
Linda O. Smith, )
Complainant, )
)
v. )
) Appeal No. 01985397
F. Whitten Peters, ) Agency No. OD1C970119
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On July 3, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
On April 13, 1998, complainant filed a formal complaint, alleging that
she was sexually harassed by her Supervisor when in December 1995, he
insisted that complainant have sexual relations with him as a condition
of employment. Complainant alleged that the discrimination continued for
fifteen (15) months, until she resigned. In her complaint, complainant
also asserted that immediately after the alleged incident occurred in
December 1995, she complained to an agency official who told her he
would "take care of the matter." According to complainant, nothing was
done and her complaint was turned over to the EEO Manager. Complainant
alleged that the EEO Manager was a friend of the accused Supervisor, and
that her complaint remained unprocessed. In a letter dated October 8,
1997, complainant wrote to the agency seeking attention on the matter.
The letter was forwarded to the EEO office and construed by the agency
as her initial EEO Counselor contact.
The agency dismissed the complainant's complaint for untimely EEO
counselor contact. Specifically, the agency stated that the official
whom complainant contacted in December 1995 ordered an investigation
and advised complainant of her right to pursue the matter through the
EEO process; and that an officer from the base legal office conducted
an investigation and also advised complainant of her right to contact
an EEO Counselor. According to the FAD, complainant declined to contact
the EEO Counselor.
On appeal, complainant reiterates that she unsuccessfully attempted
to initiate the EEO complaint process at the time the alleged incident
of sexual harassment commenced in December 1995. In support of this
assertion, complainant submits an affidavit from a former EEO Manager
who had been associated with the agency; and who stated that complainant
had informed her in September 1997, that she contacted agency officials
contemporaneous with the alleged incidents of sexual harassment.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.105(a)(1)) requires
that complaints of discrimination should be brought to the attention
of the Equal Employment Opportunity 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 forty-five (45) days of the effective
date of the action.
In the instant case, the agency's decision to dismiss the complaint for
untimely EEO Counselor contact was predicated upon a determination that
even though the alleged harassment occurred in December 1995, complainant
did not contact an EEO Counselor until October 1997. The agency,
moreover, asserts that in December 1995, complainant approached an agency
official on the matter of purported harassment; that in December 1995,
the agency official advised complainant to pursue the matter through
the agency complaint process; and that despite having been so advised,
complainant did not contact an EEO Counselor at that time.
Given the present record, we are unable to ascertain whether complainant
was advised to pursue the EEO complaint process in December 1995;
whether she actually pursued the EEO complaint process in December 1995,
as she has asserted on appeal; or whether complainant first initiated
EEO Counselor contact in October 1997, as determined by the agency.
Accordingly, the agency's decision to dismiss the instant complaint is
VACATED. Complainant's complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
Finally, the Commission notes that the record reveals that the agency
defined complainant's complaint too narrowly. The Counselor's Report
includes claims of a pattern of sexual harassment and constructive
discharge. Although the formal complaint alleged that the sexual
harassment began in December 1995, continued for fifteen months, and
resulted in complainant's resignation, the FAD only addressed the December
1995 incident. Therefore, the Commission finds that the complaint must
be remanded to the agency for consideration of these additional issues.
The agency's decision dismissing the complaint is VACATED, and REMANDED
for a supplemental investigation and determination as ORDERED below.
ORDER
The agency is ORDERED to conduct a supplemental investigation regarding
the matters raised by complainant, as redefined in our decision.
The agency shall determine whether complainant was advised to go to an EEO
Counselor by the agency official whom complainant purportedly contacted
in December 1995; whether complainant actually pursued the EEO complaint
process in December 1995, if she was so advised; or whether complainant
initiated EEO Counselor contact at some later date, i.e., October 1997, as
determined by the agency in its final decision. The agency shall include
copies of all documents relied upon in reaching such determination,
including any affidavits from agency officials who may have advised
complainant to pursue the EEO complaint process. Thereafter, the
agency shall issue a final decision or accept complainant's complaint
for investigation. The supplemental investigation and issuance of the
final decision or notice of processing must be completed within thirty
(30) calendar days of the date that this decision becomes final.
A copy of a notice of processing or any new final agency decision 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
May 6, 2000
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION 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 EQUAL EMPLOYMENT ASSISTANT
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.