01996903
04-18-2001
Marlene C. Goede, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.
Marlene C. Goede v. United States Postal Service
01996903
April 18, 2001
.
Marlene C. Goede,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Appeal No. 01996903
Agency No. 1-J-602-0046-99
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges that she was discriminated against
on the basis of her sex when she was sexually harassed by a co-worker
on numerous occasions, both at work and outside of the workplace.
For the following reasons, the Commission VACATES and REMANDS the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Mail Processor at the agency's Processing and Distribution Center
at Palatine, Illinois. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on June 27, 1999. The agency dismissed the complaint prior
to investigation on the grounds that complainant had not been harmed by
any actions of the agency. From this decision, complainant now appeals.
In its final decision, the agency concluded that complainant had
complained of a single incident of harassment that occurred outside of
the workplace at complainant's home. The agency found that complainant
had failed to state a claim under either � 1614.103 or � 1614.106(a)
because she had not alleged a personal loss, or harm to the terms,
conditions, or privileges of employment.
The agency further found that complainant had not sought EEO counseling
prior to filing her complaint, as required under � 1614.105(a).
The agency stands on the record and requests that we affirm its final
decision.
While not deciding the merits of the particular facts at issue in this
case, we initially note that, where unwelcome sexual conduct occurs
both at work and outside of the workplace, it may form a condition
of employment and thus constitute actionable sexual harassment.
See Meritor Savings Bank v. Vinson, 106 S. Ct. 2399, 2402 (1986); Barlow
v. Department of the Navy, EEOC Request No. 01971585 (June 11, 1998).
After a thorough review of the record, we find that complainant has
alleged that she had been sexually harassed at her place of work, as
well as outside of the workplace. While the agency addressed only the
incident where a co-worker (CW) left some items on complainant's car while
it was parked outside complainant's home, we note that complainant has
also complained of harassment that allegedly occurred on the workroom
floor, that lasted for over a year, and that included stares, grins,
and suggestive comments from CW. She further stated that, while at work
she had to stack up pieces of equipment in order to block his view of
her. These allegations have been substantiated by several co-workers.
We further note that, contrary to the agency's findings, the evidence
reveals that complainant did indeed seek EEO counseling. The evidence
reveals that she first contacted the EEO Counselor on March 2, 1999,
her initial interview was on April 29, 1999, and the EEO Counselor's
report was completed on August 8, 1999. In view of the above, we vacate
the agency's finding of failure to state a claim, and remand this matter
for a supplemental investigation in accordance with the following ORDER,
and the applicable EEOC Regulations.
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:
April 18, 2001
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date