05991079
11-08-1999
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Metro/Northeast Areas), Agency.
Paula A. Davis v. United States Postal Service
05991079
November 8, 1999
Paula A. Davis,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(New York Metro/Northeast Areas),
Agency.
Request No. 05991079
Appeal No. 01990382
Agency No. 4B-140-0050-98
DECISION ON REQUEST FOR RECONSIDERATION
On August 26, 1999, Paula A. Davis, (hereinafter referred to as
the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in
Davis v. United States Postal Service, EEOC Appeal No. 01990382 (July
29, 1999). EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. � 1614.407(a). The party requesting reconsideration must
submit written argument or evidence that tends to establish one or more
of the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. � 1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. � 1614.407(c) (2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. � 1614.407(c) (3). For the reasons set forth herein, appellant's
request is DENIED. The Commission exercises its discretion on its own
motion, however, pursuant to 29 C.F.R. � 1614.407(a), to reconsider the
previous decision, as discussed below.
ISSUE PRESENTED
Whether the previous decision properly dismissed appellant's appeal as
untimely and whether the agency properly dismissed appellant's complaint
allegation on the grounds that she failed to timely seek EEO counseling.
BACKGROUND
The previous decision herein found appellant's appeal to be untimely.
That decision noted that appellant alleged, through her attorney, that she
had previously mailed her appeal to the Commission on September 8, 1998,
but found that appellant had not presented sufficient evidence to support
this contention. Specifically, the decision found that appellant failed
to provide "a copy of a certified mail return receipt card or any other
material capable of establishing the timeliness of her appeal." Attached
to her "memorandum of law In support of her appeal" (hereinafter "appeal
memorandum"), appellant provided an unsigned copy of a letter stating
that she was appealing the agency's decision, a signed copy of an EEOC
Form 573/Notice of appeal, which was dated September 8, 1998, as well
as a copy of a sworn affidavit of service from an office worker which
stated that the appeal was filed on September 8, 1998. The record on
appeal contained no other evidence to corroborate appellant's contentions
concerning the timeliness of her appeal and there is no evidence that the
Commission in fact received appellant's Notice of Appeal separate from
the copy that was attached to the appeal memorandum. In her request
for reconsideration, appellant reiterates that she in fact mailed the
appeal in a timely fashion and that the Commission mistakenly accepted
the appeal memorandum, dated October 8, 1998, as the notice of appeal.
In support of her reconsideration request, appellant's counsel again
refers to the September 8, 1998, affidavit of service and, further,
submits a copy of a page from his computer directory that purports to
show that an appeal letter was created on September 8, 1998.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party seeking reconsideration submits written argument or
evidence which tends to establish that any of the criteria in 29 C.F.R. �
1614.407(c) are met. The Commission's scope of review on a request
for reconsideration is narrow. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989). In order for a case to
be reconsidered under 29 C.F.R. � 1614.407(c), the request must contain
specific information which meets the requirements of this regulation.
A request for reconsideration is not merely a form of second appeal.
Regensberg v. United States Postal Service, EEOC Request No. 05900850
(September 7, 1990). Instead, the request for reconsideration is an
opportunity for an appellant to submit newly discovered evidence,
not previously available; to establish substantive legal error in
a previous decision; or to explain how the previous decision is of
such an exceptional nature as to have effects beyond the case at hand.
Lyke v. United States Postal Service, EEOC Request No. 05900769 (September
27, 1990).
After a review of the appellant's request for reconsideration,
the previous decision, and the entire record, the Commission finds
that appellant's request fails to meet the criteria of 29 C.F.R. �
1614.407(c), and it is the decision of the Commission to deny the request.
Appellant's request fails to meet the criteria required to grant
reconsideration because it does not raise new and material evidence,
an erroneous interpretation of law or material fact, or an issue with
precedential implications.
Notwithstanding this ruling, however, the Commission exercises its
discretion on its own motion to reconsider the previous decision. We do
so based upon the documentation submitted by appellant with his request.
Under the particular circumstances of this case, we find appellant's
counsel's representation that he mailed the appeal in a timely manner
to be sufficiently corroborated. Thus, we will reconsider this matter
to deem appellant's appeal timely filed.
Turning to the merits of the agency's dismissal, we find that the
agency properly dismissed appellant's complaint allegation. In its
final decision dated August 7, 1998, the agency dismissed appellant's
allegation that she was subjected to hostile work environment sexual
harassment by a male coworker (CW) and subjected to reprisal for prior
EEO activity as a result of the following:
(1) During the period 1988 through January 1994, (a) [CW] referred
to a female supervisor at the Detached Mail Unit (DMU) as "mom";
(b) he made lesbian-type remarks concerning the female supervisor;
(c) he made gender based comments about [appellant], and sexist remarks
and derogatory comments about women, beginning in 1989; (d) he made an
obscene gesture by pulling his pants up and out, directed at a shipping
employee in [appellant's] presence on March 12, 1990;
The agency accepted for investigation the remaining allegations:
(2) on May 6, 1997, [appellant] found a page of dumb blond jokes on
[her] desk; (3) during the period May 7 through October 2, 1997,
[appellant] received unsolicited pieces of mail at [her] home having
to do with menopause, aging, and estrogen replacement therapy, etc.;
(4) during the period approximately November 1997 through January 1998,
[CW] deliberately delayed or deliberately shuffled box mail flats coming
to [appellant]; (5) [CW] stated as he walked passed [sic] [appellant]
"guns, guns, guns", sometime in February 1998; (6) on February 17, 1998,
[CW] placed both hands on [her] back and brushed the front of his body
against [her] back and buttocks; (7) [she was] scheduled to report to
the Employee Assistance Program (EAP) on February 20, 1998; (8) [she
was] placed on Administrative Leave on February 20, 1998 for four days;
(9) on February 25, 1998, [her] supervisor requested a fitness for duty
examination before [she] could return to work; and (10) on March 27, 1998,
[she was] referred to another doctor for further examination.
Appellant asserted on appeal that the events complained of in allegation
1 are part of a continuing violation: that is, they are not isolated
incidents and that they are directly related to allegations 2 through 10,
beginning in May 1997.
The legal principles governing continuing violations are well settled.
Generally, an aggrieved person must initiate contact with a counselor
within 45 days of the date of the matter alleged to be discriminatory. 29
C.F.R. � 1614.105(a)(1). This time limit may be extended, however, if
the allegation involves a continuing violation. A continuing violation
has been defined as a series of related acts, one or more of which
falls within the limitations period, or the maintenance, over time, of a
discriminatory policy or system. Martinez v. Department of Defense, EEOC
Request No. 05950499 (August 1, 1996); Barbara Lindemann & Paul Grossman,
Employment Discrimination Law, 1351 (3d ed. 1996). If at least one of
the acts complained of falls within the limitations period, a complaint
filed at any time within this period is timely filed with respect to
all acts which are part of the continuing violation. Clark v. Olincraft,
Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied 434 U.S. 1069 (1978).
An essential ingredient of a continuing violation is an analogous theme
uniting the timely and untimely acts of alleged discrimination by the
employer into a continuous pattern. Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989).
In determining whether a series of discrete occurrences, such as
those at issue in this case, constitutes a continuing violation, the
Commission will look at such factors as whether the acts involve the
same type of discrimination, the frequency of the acts, and whether the
acts have a degree of permanence sufficient to trigger an individual's
awareness of her duty to assert her rights, i.e., a reasonable suspicion
of discrimination. Saya v. Department of the Air Force, EEOC Appeal
No. 01961420 (September 12, 1997); Jackson v. Department of the Air
Force, EEOC Request No. 05950780 (May 24, 1995); Blighton v. Department
of the Treasury, EEOC Request No. 05940483 (November 29, 1994); Simeone
v. Department of the Navy, EEOC Request No. 05930973 (January 25, 1994);
Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921
F.2d 396 (1st Cir. 1990); Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983). Once she has a reasonable suspicion of discrimination,
the complainant may not wait until all supporting facts become apparent
before contacting a counselor. Peets v. United States Postal Service,
EEOC Request No. 05950725 (March 28, 1996); Bracken v. United States
Postal Service, EEOC Request No. 05900065 (March 29, 1990).
Further, EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period
to be extended under certain circumstances and 29 C.F.R. �1614.604(c)
provides that the time limits in Part 1614 are subject to waiver,
estoppel and equitable tolling. Nevertheless, while time limitations
are subject to waiver, estoppel and equitable tolling, complainants
are required to act with due diligence in pursuit of their claims.
See Sapp v. United States Postal Service, EEOC Request No. 05950666 (May
31, 1996); Jenkins v. Department of the Army; EEOC Request No. 05940721
(January 26, 1996); O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990)(doctrine of laches is
an equitable remedy under which an individual's failure to diligently
pursue their actions could bar claims).
In the present case, we find that the doctrine of laches is applicable
and the agency's rejection of allegation 1 was proper. Regarding the
rejected allegation, appellant asserts that she pursued pre-complaint
processing in April 1990, but declined to pursue the issue further
after discussions with her EEO Counselor at that time. According to
appellant, the EEO Counselor informed her that she had not been subjected
to sexual harassment. Assuming the aforementioned counseling went as
appellant described, it is clear that appellant was improperly counseled.
Nevertheless, appellant states in her appeal memorandum that after
the counseling session she brought in sexual harassment literature
on her own and posted it. Furthermore, she states that in 1992 she
arranged "for a sexual harassment/hostile environment consultant from
the National Association for Working Women to hold a meeting to give
instruction regarding the sexual harassment law." Notwithstanding
appellant's assertions to the contrary, her continued activity with
respect to sexual harassment literature and training indicates that for
a considerable period of time after the counseling session she had a
reasonable suspicion of discrimination. However, she failed to raise
these matters again in the EEO forum until she sought counseling for
the activities that began in May 1997.
Based on the foregoing, we find that acts complained of in allegation 1
had a degree of permanence sufficient to trigger appellant's awareness
of her duty to assert her rights in a more timely fashion. Since this
is our first decision on the merits of the appeal, reconsideration rights
are afforded to the parties below.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to meet the criteria for reconsideration, and it is the
decision of the Commission to DENY this request. The Commission, however,
exercises its discretion to reconsider the previous decision on its own
motion under 29 C.F.R. � 1614.407(a). The decision of the Commission
in EEOC Appeal No. 01990382 is REVERSED. Nevertheless, the agency's
final decision is AFFIRMED. There is no further right of administrative
appeal from that portion of our decision pertaining to the timeliness
of appellant's appeal of the agency's final decision.
STATEMENT OF RIGHTS ON APPEAL
RECONSIDERATION (M0795)
With regard to that portion of our decision pertaining to the agency's
dismissal of allegation 1, the Commission may, in its discretion,
reconsider the decision in this case if the appellant or the agency
submits a written request containing arguments or evidence which tend
to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 8, 1999 ____________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations