Linda O. Smith, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 6, 2000
01985397 (E.E.O.C. May. 6, 2000)

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.