01966571
04-10-2000
Benitha D. Mathews, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Benitha D. Mathews v. United States Postal Service
01966571
April 10, 2000
Benitha D. Mathews, )
Complainant, )
)
v. ) Appeal No. 01966571
) Agency No. 4-H-350-2747-93
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 2, 1993, complainant sought EEO counseling concerning
alleged employment discrimination. On December 1, 1993, she filed a
formal complaint alleging a violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. on the basis of race
(African-American) when:
On September 4, 1993, another employee was awarded a Training Technician
position for which she was unqualified, and complainant was not allowed
to bid for the position; and
In January 1992, complainant was denied a promotion to the position
of Personnel Assistant.
In a final decision (FAD) dated May 17, 1994, the agency accepted
claim (1) for investigation, but dismissed claim (2) for untimely
counselor contact.<1> Complainant appealed, and on September 15, 1995,
this Commission affirmed the agency in 01945700. On October 18, 1995,
complainant requested reconsideration of her appeal, arguing that claims
(1) and (2) constituted a continuing violation. The Commission granted
reconsideration, and ordered a supplemental investigation to determine
whether a continuing violation existed, and consequently, whether claim
(2) should be investigated. See Mathews v. United States Postal Service,
EEOC Request No. 05960055 (April 24, 1996). Specifically, the Commission
ordered the agency to ascertain "whether the same officials were involved,
whether the incidents were of a similar nature, etc." Id.
The agency completed the supplemental investigation on June 11, 1996.
In its investigation, the agency obtained an affidavit from both
complainant and complainant's supervisor. Complainant stated that
her supervisor was the only official involved in her January 1992
non-selection. Regarding the 1993 incident, complainant explained that
only current Training Technicians were allowed to apply for the position,
but the successful applicant was not a qualified or current Training
Technician. The supervisor, in her affidavit, acknowledged that she was
the only official involved in the January 1992 selection. Regarding the
1993 selection, she claims that no selection process was conducted,
because there was only one "eligible" applicant. The supervisor noted
that under the National Agreement with the American Postal Workers'
Union, vacancies limited to "best qualified"Training Technicians were
only open to current Training Technicians.
On August 6, 1996, the agency again dismissed claim (2) for untimely
counselor contact. Specifically, the agency found that preventing
complainant's bid for the 1993 position was not the supervisor's decision,
but was governed by the National Agreement. Not selecting complainant
for the Personnel Assistant position, however, was the supervisor's
decision. Therefore, the agency reasoned that no common nexus or theme
was established between claims (1) and (2), and therefore, no continuing
violation existed.
Complainant timely filed the present appeal from this August 6,
1996 decision.<2> The appeal is accepted for review pursuant to
64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. �
1614.405).<3>
EEOC Regulations provide for the dismissal of claims not brought
to the attention of an EEO Counselor within forty-five days of the
personnel action involved. See 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2));
see also 29 C.F.R. � 1614.105(a)(2). However, this time limitation is
subject to extension, waiver, and equitable tolling. See 29 C.F.R. �
1614.107(a)(2); 29 C.F.R. � 1614.604(c).
The Commission has waived the untimeliness of some claims within a
complaint where the complainant alleged a continuing violation; that is,
a series of related discriminatory acts, one of which fell within the
time period for contacting an EEO Counselor. See Reid v. Department of
Commerce, EEOC Request No. 05970705 (April 22, 1999). To be considered
part of a continuing violation, the claims must be connected by a common
scheme or nexus. See Howard-Grayson v. United States Postal Service,
EEOC Request No. 05990160 (December 3, 1999). Relevant factors to
determining whether a common nexus exists include the time between each
incident, whether the same officials were involved in each incident,
and the nature of the incidents themselves.
Claim (2) occurred more than one year before claim (1). It involves
a different position, and a different selection process. Further,
the agency provided evidence that it followed the National Agreement
in determining who was eligible to apply for the Training Technician
position (claim (2)), and such consideration did not arise in claim (2).
Therefore, the Commission finds that complainant failed to establish a
continuing violation.
CONCLUSION
Accordingly, the agency's dismissal of claim (2) is AFFIRMED.
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
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 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 (S0400)
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. 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:
April 10, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1Complainant also filed a grievance concerning the 1993 Training
Technician position, which was settled on October 6, 1993. The settlement
provided that complainant would be placed in a Training Technician
position effective October 9, 1993.
2On 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.
3Under the revised regulations, the Commission normally declines to accept
appeals concerning partially dismissed complaints. Since the Commission
has addressed the pending partial dismissal in two prior decisions, and
in light of other equitable considerations, the Commission will review
the dismissal of claim (2).