Bruce C. Webster, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency, ______________________________)

Equal Employment Opportunity CommissionAug 20, 1999
01983028 (E.E.O.C. Aug. 20, 1999)

01983028

08-20-1999

Bruce C. Webster, Appellant, V. William J. Henderson, Postmaster General, United States Postal Service, Agency, ______________________________)


Bruce C. Webster v. United States Postal Service

01983028

August 20, 1999

Bruce C. Webster, )

Appellant, )

)

V. ) Appeal No. 01983028

) Agency No. 4-A-100-0145-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency, )

______________________________)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

his allegation that the agency violated Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. The appeal

is accepted by the Commission in accordance with the provisions of EEOC

Order No. 960.001.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed portions

of appellant's complaint for untimely contact with an EEO counselor and

failure to state a claim.

BACKGROUND

Appellant initiated contact with an EEO counselor on May 15, 1997, and

filed a formal complaint on November 12, 1997, alleging discrimination

based on reprisal (prior EEO activity) when,

on October 10, 1996, he was forced to work outside his bid assignment;

on October 10, 1996, he was refused medical attention;

on October 24, 1996, he was issued a Letter of Warning;

in October, 1996, he was placed in pay location 613 under Supervisor I;

on an unspecified date, he was returned to pay location 614 without

notice;

on February 11, 1997, his tour was changed from 6:00 a.m. to 9:30 a.m.;

on February 28, 1997, and March 11, 1997, his requests for a change of

schedule were denied;

on March 17, 1997, he was issued a Letter of Warning for failing to

follow instructions and starting his tour early without authorization;

on an unspecified date, overtime was given to individuals not on the

overtime desired list;

on June 12, 1997, he was issued a 7-day Suspension;

on July 8, 1997, his on-the-job injury claim with the Department of Labor,

Office of Workers' Compensation Programs was controverted;

on unspecified dates he was required to submit evidence of his need to

be absent from work;

on an unspecified date his job was abolished after he requested out of

schedule premium pay;

on an unspecified date, he was accused of destroying Postal Service

property, sabotage, and delaying the mail;

on October 16, 1997, his request for a day off was denied, he was marked

as absent without official leave (AWOL) even though he had proof of his

need for the absence, and his grievance on the AWOL was denied at Step

I of the grievance procedure;

on October 31, 1997, he was issued a 14-day suspension;

a verbal agreement between appellant, the EEO counselor, and the union

to close complaint number 1-A-101-1078-96 was breached;<1>

on March 25, 1997, he requested a pay location change;

his doctors' notes were questioned;

his pay stubs were deliberately withheld;

he was not given an original Form 3971 for EAL;

he marked containers of mail even when he was doing more than required

work; and

an employee was the successful bidder for an assignment but never

worked it.

The final agency decision (FAD), dated February 9, 1998, accepted

allegations 10, 12, 13, 15, and 16 for investigation. The agency

dismissed allegations 1 through 9 for untimely contact with an EEO

counselor, and allegations 11 and 14 for failure to state a claim.

On appeal, appellant argues that the agency failed to consider several

of his allegations in its final decision. Appellant re-lists all of

his allegations including those he claims were omitted.<2> These are:

1. Breach of a verbal agreement between appellant, the EEO office

and the union shop steward changing appellant's hours in exchange for

withdrawal of his EEO complaint;

2 Submission of a buck slip to the union shop steward and manager to

request a pay location change;

3. Excessive requests by the Supervisor for evidence to cover appellant's

absences

4. Appellant was marked AWOL after he submitted proof for EAL;

5. Appellant was refused a Step 1 grievance regarding the AWOL;

6. Appellant's pay stub was deliberately withheld;

7. Appellant was not given an original Form 3971 for EAL;

8. Appellant marked containers of mail even when he was doing more than

required work; and

9. An employee was the successful bidder for an assignment but never

worked it.

The agency argues that all of appellant's allegations were addressed

in the FAD and that allegations (17) through (23) are duplicates of

allegations listed as (1) through (16). The agency correlates each

of the allegations appellant claims were omitted with an allegation

addressed by the FAD.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with a counselor within 45 days of the date

of the matter alleged to be discriminatory or, in the case of personnel

action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.107(b) provides that an agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in ��1614.105, 1614.106 and

1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c), or that raises a matter that has not been brought to

the attention of a counselor and is not like or related to a matter that

has been brought to the attention of a counselor.

The Commission finds that appellant states a claim of harassment. The

Commission further finds that the agency examined appellant's complaint

as isolated events rather than as an ongoing pattern of harassment.

When confronted with claims involving multiple allegations, the agency

should not ignore the "pattern aspect" of a complainant's claims and

define the issues in a piecemeal manner. See Meaney v., Department of

the Treasury, EEOC Request No. 05940169 (November 12, 1993).

The Commission has held that the time requirements for initiating EEO

counseling can be waived as to certain allegations within a complaint when

the complainant alleges a continuing violation. A continuing violation

has been defined as a series of related discriminatory acts, one of

which falls within the time period for contacting an EEO counselor.

McGiven v. United States Postal Service, EEOC Request No. 05901150

(December 28, 1990).

Because of the continuing nature of the allegations, the Commission

finds that the agency improperly dismissed allegations (1) through (8)

for untimeliness.

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, disabling condition or retaliation for prior

EEO activity. 29 C.F.R. �1614.103; �1614.106(a). The Commission's

federal sector case precedent has long defined as "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).

The Commission finds appellant fails to demonstrate an injury with

respect to allegations 9, 11 and 14, and therefore, fails to state a

claim. Thus, the Commission finds that allegations (9), (11) and (14)

are properly dismissed.

Upon review of the record, the Commission finds that appellant's

allegations (17), and (19) through (22) are in fact duplicates of

allegations listed in the complaint as numbers (1) through (16).

As duplicates, these allegations need not be addressed.

The Commission finds that allegation (18) and (23) do not appear to

correspond to any of the issues addressed in the FAD and thus may

not be duplicates. On remand, the agency shall request that appellant

clarify the specific date of each allegation and provide more information

identifying the act.

CONCLUSION

Accordingly, the decision of the agency to dismiss allegations 1 through

8 is REVERSED. The decision to dismiss allegations 9, 11, 14, 17, and

19 through 22 of the complaint is AFFIRMED. Allegations 18 and 23 are

REMANDED in accordance with this decision and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

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. 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 (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

August 20, 1999

_________________________ ___________________________

DATE Carlton Haddon, Acting Director

1 The record indicated appellant's EEO complaint number 1-A-101-1078-96

was settled on November 7, 1996, and complaint number 4-A-000-1499-93 was

settled on June 22, 1993.

2 Appellant argues that the agency failed to consider ten allegations,

but lists only nine in addition to those addressed in the FAD.