01995687
07-14-2000
Wanda B. Shew, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wanda B. Shew v. United States Postal Service
01995687
July 14, 2000
Wanda B. Shew, )
Complainant, )
)
v. ) Appeal No. 01995687
) Agency No. 4D270008199
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
agency decision dated June 14, 1999 dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. Section 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).
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed
complainant's complaint for untimely EEO Counselor contact and for
failure to state a claim.
BACKGROUND
Complainant contacted the EEO Counselor on February 22, 1999, and filed
a formal complaint on April 15, 1999, alleging sexual harassment in
violation of Title VII. In her complaint, complainant alleged that she
was subjected to discrimination on the basis of sex when:
in 1996 and 1997, the Postmaster sexually harassed complainant by
discussing his personal life, standing uncomfortably close to her,
brushing up against her, telling her that he was the boss and that
he could do whatever he wanted, telling here that he wouldn't sign
a leave slip for one day off until he talked to another employee for
permission; and
on January 9, 1999, complainant was called into his office where he
verbally abused her.
In a final agency decision, the agency dismissed complainant's first
issue pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2) for failing
to initiate contact with an EEO counselor within forty-five days of the
alleged discriminatory incident. The agency dismissed the second issue
pursuant to 29 C.F.R. � 1614.107(a)(1) for failing to state a claim.
ANALYSIS AND FINDINGS
Issue #1
In addressing the first issue dismissed for untimely contact with an
EEO counselor, 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. 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.
In this case, complainant contacted an EEO Counselor one to two years
after the alleged discriminatory incidents of sexual harassment from
mid winter 1996 until 1997. Therefore, the complainant's EEO contact
was clearly beyond the forty-five day time limit.
EEOC Regulations at 29 C.F.R. � 1614.105(a)(2) further 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.
Complainant, in turn, argues lack of constructive or actual notice
as justification for failing to meet the forty-five day time period to
contact an EEO Counselor. The Commission acknowledges the absence of time
limit restrictions on the poster proffered by complainant in the record.
The agency, however, has supplied an affidavit signed by the Postmaster
declaring that a separate EEO poster containing time limits has been
displayed since 1992. Since the agency has only provided the Commission
with an affidavit signed by the same official which complainant accused
of discriminating against her, and has not supplied further proof that
the said poster was in fact displayed, we note a conflict of interest.
Therefore, we cannot credit the Postmaster's affidavit as evidence
of complainant's notification of the time limits. Without additional
evidence that the EEO time limits were posted, we find that complainant
did not have constructive nor actual notice. Thus, the agency improperly
dismissed the first issue of the complaint for untimely EEO Counselor
contact.
Issue #2
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
In the case at hand, the Commission finds that the complainant failed
to show that she suffered harm with respect to the terms, conditions
or privileges of her employment as a result of one incident of verbal
abuse by the Postmaster on January 9, 1999. In her Information for
Precomplaint Counseling form, complainant states that the Postmaster
�took [her] into a small, windowless room and proceeded to verbally abuse
[her].� Although complainant asserts that the Postmaster told her to
�shut [her] mouth� or he would �fire [her] on the spot,� she fails to
articulate how he abused her or explicitly state what he said. Therefore,
standing alone, the second issue raised fails to state a claim.
Complainant further alleged that this incident constituted gender
harassment. We find, however, that this event, by itself, was not
sufficiently severe to sustain a claim of discriminatory harassment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). The Commission also finds that complainant has not established
a continuing violation since a gap of over a year exists between
the last of these incidents and the one occurring in January 1999.
Additionally, even when viewed within the context of the first claim
and in a light most favorable to complainant, the second claim is too
isolated and insufficiently severe to establish discriminatory harassment.
Consequently, the second claim was properly dismissed pursuant to 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)), for failure to state a claim.
CONCLUSION
The Commission hereby REVERSES and REMANDS the final agency decision
dismissing the first issue for untimely EEO Counselor contact and
AFFIRMS the final agency decision dismissing the second issue regarding
complainant's failure to state a claim.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (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
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:
07-14-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.