01996500_r
07-24-2001
Sandra Y. Petitt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra Y. Petitt v. U.S. Postal Service
01996500
July 24, 2001
.
Sandra Y. Petitt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996500
Agency No. 1-G-708-0043-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated August 10, 1999, dismissing her complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission accepts
the appeal in accordance with 29 C.F.R. � 1614.405.
On April 16, 1998, complainant contacted an EEO Counselor alleging that
she had been subjected to sexual harassment by Supervisor A in 1993, and
removed her from the 204B supervisor program when she refused his sexual
advances. Complainant claimed that she was never again afforded the
opportunity to participate in the 204B program, although another manager
permitted her to act as a supervisor on several occasions in January
1998. Complainant indicated that Supervisor A again sexually harassed
her while performing one of the January 1998 supervisory assignments.
The record next shows that complainant filed an EEO complaint on February
13, 1998, claiming sexual harassment by Supervisor B, but no further
details regarding this complaint are of record.<1> The EEO Counselor
report for the instant complaint additionally reflects that complainant
claims that she only first became aware that she could file a complaint
about Supervisor A's purported conduct during the investigation of her
pending EEO complaint, referencing a conversation with the investigator on
April 15, 1998, wherein this was disclosed to her. The EEO Counselor's
report further indicated that complainant claimed that she was denied
additional supervisory assignments after filing her February 1998
EEO complaint on the basis of reprisal. When EEO counseling failed to
resolve complainant's concerns, complainant filed a formal EEO complaint
on April 8, 1999.
In her complaint, complainant claims that Supervisor A subjected her
to sexual harassment and removed her from the 204B program in 1993.
Complainant additionally claims that Supervisor A again subjected her
to sexual harassment in January 1998, and that the agency denied her
further supervisory assignments in retaliation for filing her February
1998 EEO complaint.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact, finding that complainant failed to act with due
diligence in pursuing the instant claims. Specifically, the agency found
that complainant's initiation of the February 1998 sexual harassment
complaint reflects her awareness that the instant claims were actionable
as sexual harassment complaints long before her April 16, 1998 EEO
Counselor contact. Furthermore, the agency states that complainant had
knowledge of these time limits by virtue of employee training and EEO
posters in the workplace, and that she provided no credible reason to
justify waiving the time limit.
On appeal, complainant avers that she was not aware that these time
limits applied to claims of sexual harassment, and denies that she ever
received this information during employee training courses, remarking
that the agency failed to provide any evidence to show that she had.
The agency did not respond to complainant's appeal.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires that complaints of
discrimination should be brought to the attention of the 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 forty-five
(45) days of the effective date of the action. The Commission has
adopted a �reasonable suspicion� standard (as opposed to a �supportive
facts� standard) to determine when the forty-five (45) day limitation
period is triggered. See Howard v. Department of the Navy, EEOC
Request No. 05970852 (February 11, 1999). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Where, as here, there is an issue of timeliness, �[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness.� Guy v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994). In this case, we find that
the agency has satisfied this burden because the record reflects that
complainant initiated timely EEO Counselor contact regarding her February
1998 sexual harassment claim, thereby demonstrating that she knew what
type of conduct constituted a claim of sexual harassment, and was aware of
the applicable time limits for pursuing a sexual harassment complaint in
the EEO process. In this case, however, complainant nonetheless delayed
pursuing the instant claims regarding Supervisor A's purported sexual
harassment until April 16, 1998, more than forty-five days after that
time which the evidence demonstrates complainant was aware that this
type of conduct constitutes an actionable claim (i.e., should have
�reasonably suspected�), and knew the time limit for pursuing such
a claim. Therefore, we agree with the agency that complainant failed
to use due diligence in pursuing her sexual harassment claims regarding
Supervisor A, and that this claim was properly dismissed on the grounds
of untimely EEO Counselor contact. We AFFIRM the agency's decision on
this matter.
However, we find that the instant complaint also raises a claim regarding
complainant's lack of supervisory assignments after the filing the
February 1998 sexual harassment complaint. Because complainant indicates
that these denials have been on-going since she filed her complaint, we
find that her April 16, 1998, EEO Counselor contact regarding this claim
is timely. Therefore, we conclude that the agency improperly dismissed
complainant's claim relating to the retaliatory denial of supervisory
assignments, and we REVERSE that determination, and REMAND this claim
to the agency for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim (regarding denial
of supervisory assignments) in accordance with 29 C.F.R. � 1614.108.
The agency shall acknowledge to the complainant that it has received the
remanded claim 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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
July 24, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency and complainant make reference to this complaint, although
no documentary evidence is of record. However, the agency accepted this
complaint for investigation, but ultimately dismissed it for failure to
cooperate. On appeal, the Commission affirmed the agency's dismissal.
Petitt v. USPS, EEOC Appeal No. 01994547 (February 17, 2000); request
to reconsider denied, EEOC Request No. 05A00406 (May 11, 2000).