01990848
09-07-1999
Charlene Horn, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charlene Horn v. United States Postal Service
01990848
September 7, 1999
Charlene Horn, )
Appellant, )
)
v. ) Appeal No. 01990848
) Agency No. 4-D-400-0021-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 9, 1998, appellant filed an appeal with this Commission
from a final agency decision (FAD) dated September 28, 1998, pertaining
to her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq.<1> In her complaint, appellant alleged
that she was subjected to discrimination on the bases of sex (female)
and age (date of birth October 24, 1947) when:
In 1986, the postmaster allowed a stripper to come to the post office
for his birthday, and a supervisor (S1) was given a "boobs" cake for
his birthday;
In 1987, a supervisor (S2) put his hand on appellant's shoulder, and
subsequently downgraded appellant to an unspecified position in 1989;
In 1988, S2 made sexist jokes, and a clerk put pin-ups on the bulletin
board and wore pin-up type t-shirts;
In 1989, the postmaster split a female co-worker's days off when he made
her a "regular" employee, although the male before her had consecutive
days off;
In 1991, appellant had to file a grievance in order to become a regular
employee and have consecutive days off, since appellant had not had
consecutive days off in twelve years;
(a) In 1997, six females became regular employees, but only two had
consecutive days off; and
Also in 1997, the custodian poked appellant in the side and put his hand
on her shoulder;
In 1987, although appellant had more seniority, a co-worker was given
scheme training before appellant; and
in 1989, the same co-worker was given window clerk training before
appellant;
In 1992, although appellant had more seniority, two co-workers were
given consecutive days off and appellant was not;
On an unspecified date, another co-worker was sent to window training
before two more senior employees;
In 1986, appellant was made to memorize hundreds of street addresses
with no training and management harassed appellant about agency boxes
and mis-boxed letters;
In 1991, the postmaster tried to rescind a job posting to deny appellant
from becoming a regular employee, and S1 threatened appellant with Absent
Without Leave (AWOL);
In 1992, management, in an attempt to relieve appellant of her window duty
station, tried to manipulate appellant to an earlier shift by offering
her consecutive days off, and S2 told appellant to "sit down" and tried
to make appellant pay $1,500;
In 1993, management denied that appellant had carpel tunnel syndrome,
threatened appellant, and made appellant work overtime despite medical
advice regarding her condition; management made appellant stay at the
window while a co-worker checked out; management would not let appellant
go home despite her sore throat, and at a later date, would not allow
appellant to go home despite her stomach pain;
In 1994, S1 proposed to deny all future requests unless appellant signed
a PS Form 3189;
In 1995, appellant was required to work the window alone on two
different occasions, a supervisor (S3) interfered with appellant's work,
management called appellant in to work early although she was sick,
and told appellant that she had to work through her lunch break;
In November and December 1995, management only allowed appellant two and
one-half hours of sick leave verses eight hours, and came to appellant's
home demanding sick leave documentation; throughout 1996, management
harassed appellant regarding her sick leave usage;
In 1996, management allowed a co-worker excessive personal phone calls,
allowed a custodian to throw material away from appellant's work station,
and told appellant to unlawfully take money from the window to cover
postage due;
(a) On or about January 17, 1997, management allowed a custodian to
"mess with" appellant's work station;
On January 15, 1997, appellant was "hollered at" when she requested
assistance at the window;
On an unspecified date in January 1997, management proposed that appellant
be given consecutive days off if she left her window position;
On an unspecified date in July or August 1997, appellant was blamed for
a hold-mail problem;
On January 8, 1997, management practiced an illegal sick leave policy;
On an unspecified date in March 1997, following appellant's tonsillectomy,
management would not follow medical advise concerning overtime;
On November 12, 1997, another supervisor (S4) accused appellant of taking
three times longer to do a task;
On December 24, 1997, S4 harassed appellant about counting money;
On or about December 24, 1997, S4 lied about weekly safety meetings; and
On an unspecified date in late August or early October 1997, the
postmaster eavesdropped on appellant's telephone conversation;
A co-worker "lashed out" at appellant after a "killer day" when appellant
expressed a concern about the lack of teamwork.
In its September 28, 1998 FAD, the agency accepted allegation (18),
but dismissed allegations (1)- (17) and allegation (19) pursuant to
EEOC Regulation 29 C.F.R. �1614.107(b), for untimely counselor contact,
based upon appellant's request for counseling on October 9, 1997.<2>
Alternatively, the agency dismissed allegations (6), (9), and (19)
pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state
a claim. Specifically, the agency found that appellant suffered no harm
from allegations (6), (9), and (19).
By letter dated November 19, 1998, the agency amended its September 28,
1998 FAD and dismissed parts (a) - (f) of allegation (18) pursuant to
EEOC Regulation 29 C.F.R. �1614.107(b), for untimely counselor contact.
The remaining portions of allegation (18) were accepted for investigation.
The agency relied upon an investigative affidavit from appellant to
determine the date of each incident in allegation (18).
On appeal, appellant contends that she suffered from a hostile and abusive
work environment. Appellant also notes that she did not intend to allege
every incident that occurred over the past twelve (12) years, but was
documenting a work environment that perceived women to be objects.
Regarding timeliness, appellant argues that the agency failed to
adequately educate her about sexual harassment in order for her to invoke
her rights. Appellant claims that she attended an orientation session in
1986, which outlined a very narrow definition of sexual harassment, and
as a result she believed actionable sexual harassment occurred only when
unwanted sexual contact or attention occurred. Appellant then explains
that the employee handbook, which she received upon being employed with
the agency, also provided only cursory information regarding sexual
harassment. Appellant also claims to have called the EEO office on May
3, 1989 and May 15, 1989, but contends that an EEO Counselor informed
her that sexual harassment did not occur unless appellant experienced
unwanted intimate contact of a sexual nature. Appellant did not attempt
to file an informal complaint with either contact. In October 1990,
appellant admits that she attended EEO training where materials were
distributed including information on hostile work environment and sexual
harassment "that is forming the basis of my case." Appellant argues,
however, that she was unaware that the policies applied to her situation
at the time because she was only a temporary employee. In June 1991,
appellant claims that she again called the EEO office, but discussed
only her failure to obtain a promotion to a "regular" position, not
any allegations of harassment. On May 17, 1993, appellant claims that
she received a copy of the agency's policy on sexual harassment, which
appellant claims only described intimate sexual contact. Then, on July
11, 1997, appellant received another agency policy which outlined various
forms of sexual harassment, including hostile work environment harassment.
Appellant contends that after receiving the July 11, 1997 policy, she
again contacted the EEO office, but was told that although her concerns
were harassment, they were not sexual harassment.
Appellant attached a copy of various policies that she received,
including the agency's 1988 policy statement on sexual harassment
distributed at the October 1990 seminar, which outlined that actionable
harassment included "a sustained hostile and abusive work environment
so severe that it changes the terms and conditions of one's employment."
Appellant also attached a memo dated May 17, 1993, which intoned, "there
are various forms of sexual harassment, such as: . . . jokes, threats,
sexual remarks . . . leaving notes of an implicit or explicit sexual
nature, displaying sexist cartoons, pictures, or magazines that serve
to interfere with job performance or affect the physical well being of
an individual or group." The memo listed a number to call if employees
believed that they were the victims of harassment. Appellant attached
another memo, dated July 11, 1997, which outlined sexual harassment in
almost the exact same terms used in the May 17, 1993 memo, except that
the July 11, 1997 memo included "displaying pin-ups" as an example of
sexual harassment, and added the hostile work environment language used
in the 1988 policy statement.
In response, the agency argues that all of appellant's information and
EEO contact proves that she should have had a reasonable suspicion
of discrimination, but yet did not file an informal complaint for
several years. The agency contends that appellant failed to act with
due diligence. The agency also addresses appellant's allegation of
a continuing violation, but argues that appellant's allegations still
should be dismissed.
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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. United States Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the time
limitation can be triggered before all the facts that support a charge
of discrimination have become apparent, but not until a complainant
reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
A complainant commences the EEO process by contacting an EEO Counselor
and "exhibiting an intent to begin the complaint process." See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is "logically connected with the EEO process" is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(Sept. 7, 1990); see Kemer v. General Services Administration, EEOC
Request No. 05910779 (Dec. 30, 1991).
Although appellant contacted a counselor several times to discuss whether
certain allegations might be considered sexual harassment, appellant
never manifested an intent to file a complaint until her October 9,
1997 contact. Appellant also appears to argue that she did not file
sooner because, at least in part, she was misled by EEO personnel to
believe that she did not have an actionable complaint. The Commission
finds, however, that appellant never claimed ignorance of the applicable
limitations period.
The Commission has held that an agency may not dismiss a complaint
based on an appellant's untimeliness, if that untimeliness is caused
by the agency's action in misleading or misinforming the appellant.
See Wilkinson v. United States Postal Service, EEOC Request No. 05950205
(Mar. 25, 1996). See also Elijah v. Department of the Army, EEOC Request
No. 05950632 (Mar. 28, 1996) (if agency officials misled appellant into
waiting to initiate EEO counseling, agency must extend time limit for
contacting EEO Counselor). In the present case, however, appellant was
repeatedly informed of the agency's policy on hostile work environment
harassment and sexual harassment, and even was given examples of
harassing behavior that included the same type of incidents eventually
raised by appellant. Although appellant received this information
in 1990, 1993, and then again in 1997, appellant failed to contact a
counselor regarding her allegations of harassment until October 9, 1997.
Appellant's contention that she did not realize the polices applied to her
is unreasonable, and contrary to the materials appellant herself provided
on appeal. Therefore, appellant's delay reasonably could not be based
on any information that the agency may have given appellant in 1989.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when 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 (Apr. 22, 1999); McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (Dec. 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a common
nexus or theme. See Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (Oct. 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); see also Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who
believed he had been subjected to discrimination had an obligation to
file promptly with the EEOC or lose his claim, as distinguished from the
situation where a plaintiff is unable to appreciate that he is being
discriminated against until he has lived through a series of acts and
is thereby able to perceive an overall discriminatory pattern).
The Commission finds, however, that appellant's contention is insufficient
to justify an extension of the applicable time limit for almost twelve
(12) years. See Baldwin County Welcome Center v. Brown, 466 U.S. 147,
151 (1984) (per curiam) ("One who fails to act diligently cannot invoke
equitable principles to excuse lack of diligence"); Rys v. U.S. Postal
Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a
Title VII plaintiff must have diligently pursued her claim"). Therefore,
the agency properly dismissed allegations (1) - (5), (7) - (17), (18)(a) -
(f), and (19) because they did not occur within 45 days of appellant's
October 9, 1997 contact.<3> Regarding allegations (6)(a) and (6)(b),
however, it is not clear when in 1997, the allegations occurred, and
the agency failed to provide evidence to support its decision regarding
timeliness. Therefore, the agency's dismissal of allegation (6)(a) and
(b) for untimely counselor contact was improper.
It is well-settled that past alleged discriminatory events, which were
not the subject of timely complaints, may be used as background evidence
for a timely complaint, although they otherwise have no legal consequences
under Title VII. See United Airlines v. Evans, 431 U.S. 553, 558 (1977).
Consequently, appellant may use allegations (1), (2), (3), (4), (5),
(7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18)(a),
(18)(b), (18)(c), (18)(d), (18)(e), (18)(f), and (19) as background
evidence for her accepted allegations.
Regarding the agency's dismissal of allegations (6)(a) and (b) for
failure to state a claim, EEOC Regulation 29 C.F.R. �1614.107(a)
provides, in relevant part, that an agency shall dismiss a complaint,
or portion thereof, that fails to state a claim. An agency shall accept
a complaint from any aggrieved employee or applicant for employment who
believes that she has been discriminated against by that agency because of
race, color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �1614.103; �1614.106(a). The Commission's federal sector case
precedent has long defined an "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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find [it]
hostile or abusive: and the complainant subjectively perceives it as
such." Harris, supra at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997).
Regarding allegation (6)(a), the Commission finds that appellant has not
alleged a harm to a term, condition, or privilege of her employment.
Appellant has alleged matters that occurred to other female employees,
but has not identified any personal harm. Although the allegation may
constitute background evidence of a discriminatory animus for appellant's
accepted allegations, it does not state an independent claim.
Regarding allegation (6)(b), however, the Commission finds that the
agency improperly fragmented appellant's claim of sexual harassment.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994) (an agency should not ignore the "pattern aspect" of
a complainant's allegations and define the issues in a piecemeal manner
where an analogous theme unites the matter complained of). Consequently,
when appellant's allegations are viewed in the context of appellant's
complaint of harassment, they state a claim and the agency's dismissal
of allegation (6)(b) for failure to state a claim was improper.
CONCLUSION
Accordingly, the agency's dismissal of allegations (1)-(5), (6)(a),
(7)-(17), (18)(a)-(f), and (19) is AFFIRMED for the reasons set forth
herein. However, the agency's dismissal of allegation (6)(b) is REVERSED,
and that allegation is REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 filed your appeal with the
Commission. 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:
Sept. 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency contends on appeal that appellant's attorney received a copy
of the FAD on October 5, 1998, and that, therefore, the present appeal
is untimely. However, the agency failed to supply a copy of a certified
mail return receipt or any other material capable of establishing such
receipt by appellant's attorney. Accordingly, since the agency failed
to submit evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) days of receipt of the
agency's final decision. See, 29 C.F.R. �1614.402.
2The agency did not have dates for the incidents in allegation (18),
and noted that it would dismiss any untimely incidents after it learned
from appellant when each incident occurred.
3Since we are affirming the agency's dismissal of allegations (9) and
(19) on the grounds of untimeliness, we will not address the agency's
dismissal of these allegations for failure to state a claim.