01A15281_r
08-30-2002
Maria Calvar, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Maria Calvar v. Department of the Treasury
01A15281
August 30, 2002
.
Maria Calvar,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A15281
Agency No. 01-2285
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated August 20, 2001, dismissing 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and reprisal for prior EEO activity when:
Complainant was sexually harassed by her former supervisor (S1) from
July 1997 to July 2000.
The sexually harassing actions of complainant's former supervisor caused
her to fail the 8-week training course at the Federal Law Enforcement
Training Center (FLETC) in July 1997 and she was forced to accept a
lower-graded position on October 28, 1997.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. The agency stated that complainant's May 30, 2001 counselor
contact occurred more than forty-five (45) days from the date of the
alleged discriminatory incidents. The agency noted that complainant
contacted an EEO Counselor on November 21, 2000, regarding a letter
of counseling and filed a complaint under Agency Case No. 01-2149.
The agency acknowledged that during the processing of Case No. 01-2149,
complainant requested that her allegations of sexual harassment against
S1 be investigated. During the processing of Case No. 01-2149, the
agency informed complainant that she had not received counseling on the
sexual harassment issue and advised her that if she wished to pursue her
allegations of sexual harassment, she should contact an EEO Counselor.
In its decision in the present case, the agency considered complainant's
November 21, 2000 counselor contact and found that it was also beyond the
applicable limitations period. The agency acknowledged that complainant
contacted its Sexual Harassment Hotline and the Office of Internal Affairs
in July 2000, regarding her supervisor's alleged harassment. The agency
claimed that in response to her allegations, it took immediate action
and reassigned S1 to a different office on July 26, 2000. The agency
stated that complainant had been employed with the agency since 1991,
and found that she should have been aware of the agency's practice of
displaying posters on its bulletin boards which contain the names and
telephone numbers of the EEO Office and counselors. The agency stated
that it also distributed a yearly memorandum to employees informing
them of the manner in which to contact the Sexual Harassment Hotline.
The agency noted that complainant informed the counselor that she did not
seek counseling earlier regarding her sexual harassment claims because
she was afraid of retaliation and the agency stated that this was not
a sufficient reason for her untimely contact.
On appeal, complainant argues that the forty-five (45) day time limit
for contacting an EEO Counselor should be waived. Complainant states
that she informed her third-level supervisor (S3)
in September 1999 of the harassment by S1 but he failed to inform her
of the EEO process and thus she argues that her contact with S3 should
toll the limitations period. Complainant states that her contact
with S3 should be considered contact with an agency official logically
connected to the EEO process. Complainant notes that she also contacted
the agency's Sexual Harassment Hotline and made a formal complaint to
the agency's Internal Affairs Office in July 2000. Complainant notes
that there is no evidence supporting the agency's assertion that she
was aware of the EEO process. Complainant claims that the Commission
has held in prior tolling cases that a complainant's knowledge of the
EEO process is not relevant where she can show that she made contact
with an agency official who was logically connected to the EEO process.
Complainant requests that at the minimum, her complaint should include
all the incidents occurring within forty-five (45) days of her contact
with S3 in September 1999. Further, she requests that she be allowed to
present evidence that the pattern of sexual harassment to which she was
subjected was part of a continuing violation, thereby further expanding
the scope of her complaint.
The record contains two affidavits from complainant dated July 19,
2000, and January 9, 2001, submitted to Internal Affairs. In the
July 2000 affidavit, complainant outlines the incidents of harassment
by S1 which she states began in July 1997, when she reported to the
Miami International Airport. In her affidavit, complainant notes that
she contacted EAP in February 2000, and asked them for help with the
problems she was having with S1. Complainant also states that she and a
union representative met with S3 in April 2000, and she �informed [S3]
about the hostile work environment [S1] was creating and asked for a
transfer.�Complainant states that S3 told her that they were short on
staff and he could not transfer her. In the affidavit, complainant
also states that on July 7, 2000, she called the Harassment Hotline in
Washington, D.C., to file a complaint against S1 and she states that at
the same time she informed S3 that she filed this complaint.
The record contains an affidavit dated April 19, 2001, taken in connection
with Agency Case No. 01-2149, from S3 in which he states that �in the
latter part of 1999, [complainant] . . . informed me that she felt that
she was being sexually harassed by her Supervisor [S1] and that she had
reported it to the sexual harassment [sic] in Washington.�
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.
With regard to issue (1), we find that the agency improperly dismissed
this issue for untimely EEO Counselor contact. To satisfy the
forty-five-day contact requirement, the Commission has consistently
required complainants to contact an EEO Counselor or official logically
connected with the EEO process and �exhibit an intent to begin the
EEO process.� EEOC Management Directive (MD-110), 2-1 (November 9,
1999)(citing Kinan v. Department of Defense, EEOC Request No. 05990249
(May 6, 1999)). Furthermore, the Commission has found that in the
case of sexual harassment, contact with a supervisory official, who
was not an EEO Counselor, was sufficient to constitute EEO contact.
See Buckli v. Department of the Army, EEOC Request No. 05970223 (October
8, 1998)(citing Landmesser v. Department of Housing and Urban Development,
EEOC Request No. 05920835 (May 6, 1993)). Upon review, we find that
complainant's contact with S3 in September 1999, was sufficient to
constitute EEO contact since the agency was clearly put on notice
regarding her allegations of sexual harassment. Thus, we find that
complainant's EEO contact regarding issue (1) was timely.
With regard to issue (2), we find that the agency properly dismissed
this issue for untimely EEO Counselor contact. We note that although the
alleged discriminatory incident occurred at the latest in October 1997,
complainant failed to contact an EEO Counselor until September 1999. We
find that issue (2) was a discrete event which should have triggered
complainant's duty to timely contact an EEO Counselor.
Accordingly, the agency's decision to dismiss issue (1) is REVERSED and
this issue is REMANDED for further processing in accordance with the
Order below. The agency's decision to dismiss issue (2) is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claim 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
August 30, 2002
__________________
Date