Benitha D. Mathews, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01966571 (E.E.O.C. Apr. 10, 2000)

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).