01990896_r
06-30-1999
Charles Blystone, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles Blystone, )
Appellant, )
)
v. ) Appeal No. 01990896
) Agency No. 4-C-150-0081-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 10, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 13, 1998,
pertaining to his 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 �501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. In his complaint, appellant alleged that
he was subjected to discrimination on the bases of race (Caucasian), sex
(male), and physical disability (mid-tarsal arthritis in left foot) when:
On February 15, 1997, the postmaster told appellant that appellant
would be promoted to supervisor prior to his transfer;
In March 1997, appellant's request for transfer to clerk, New Kensington,
was denied;
On August 13, 1997, appellant was assigned to work in a very small
concrete block room;
On August 29, 1997, appellant had to wait for his new Office of Workers'
Compensation (OWCP) claim to be processed;
On September 29, 1997, appellant's supervisor asked appellant �what
are you going to do, just sit on your ass?�;
On October 16, 1997, appellant's congressman sent a letter to the
postmaster stating that appellant was not being accommodated for his
work restrictions;
On November 8, 1997, appellant's supervisor falsified Form CA-2;
In a letter dated January 25, 1998, appellant's supervisor made false
statements to OWCP;
On May 4, 1998, appellant's supervisor sent appellant an incomplete file;
On June 16, 1997, a letter responding to a congressman contained two
statements that were not true;
On June 27, 1998, appellant submitted a letter to his supervisor citing
the ELM, EL E05, and the FECA to prove to the supervisor that everything
was not handled by the book;
On June 30, 1998, a letter was sent to appellant's supervisor indicating
that another employee was willing to transfer with appellant prior to
appellant's arrival at New Kensington; if appellant had been transferred,
he would have remained a full time regular carrier;
On July 30, 1997, all of the mail to be cased was brought to appellant;
and
As of July 31, 1998, no meeting had taken place between the manager of
Human Resources and a member of the congressman's office.
The agency dismissed allegations (1) - (9) pursuant to EEOC Regulation
29 C.F.R. �1614.107(b) for untimely counselor contact. Specifically,
the agency found that appellant did not contact an EEO Counselor until
July 31, 1998, that appellant was aware of the limitations period because
of his prior EEO activity, and that appellant presented no evidence to
excuse his untimeliness. The agency also dismissed allegations (10) -
(14) pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for failure
to state a claim. The agency found that appellant was not aggrieved by
the incidents described in allegations (10) - (14).
On appeal, appellant argues, through his attorney, that despite his
limitations and requests for accommodation, appellant was forced to
work a letter carrier route that involved six (6) to eight (8) hours of
walking a day, and resulted in an injury to his knee on April 21, 1997.
Appellant contends that allegations (1) - (9) are part of a continuing
pattern of harassment, of which appellant became aware only after
appellant was subjected to more frequent incidents when he complained
to his supervisors. Further, appellant claims that he was not aware of
his right to be free from the harassment he suffered because the agency
failed to post information concerning appellant's rights under �501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
Regarding allegations (10) - (14), appellant argues that his allegations
are part of a claim of harassment, and therefore must be considered
together in a light most favorable to appellant. Appellant claims that
when the allegations are considered together,
they state a claim of harassment. Further, appellant requests attorney's
fees for the agency's �dilatory and disgraceful� dismissal of his
complaint.
The record includes appellant's formal complaint, dated September 5,
1998, in which appellant alleges, inter alia, that appellant has been
�continually harassed,� and that appellant was forced to work as a walking
mail carrier outside of his physical restrictions, which resulted in
an on-the-job-injury. The record also contains appellant's Information
for Precomplaint Counseling form, listing appellant's initial EEO
contact date as July 31, 1998, and referencing appellant's placement in
a walking mail carrier route. Further, the record includes an affidavit
from a supervisor at appellant's work site stating that EEO information,
including the forty-five (45) day limitation for raising an incident
with an EEO Counselor, was posted during the relevant time frame.
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 limitations period is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the incidents from allegations (1) - (9)
occurred more than forty-five (45) days prior to appellant's initial
EEO contact date of July 31, 1998. Further, the Commission finds
that the agency posted EEO information, including the applicable
time limitations, during the entire period of appellant's employment.
Therefore, we find that appellant had constructive knowledge of the
applicable time limits. See Santiago v. United States Postal Service,
EEOC Request No. 05950272 (July 6, 1995).
Nonetheless, allegations (1) - (9) are not necessarily untimely.
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 McGivern v. United States 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, 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 Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (Sept. 21, 1990); Maldonado v. Department of the Interior,
EEOC Request No. 05900937 (Oct. 31, 1990). 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).
It is well-settled that where, as here, there is an issue of timeliness,
�[a]n agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness.� Williams
v. Department of Defense, EEOC Request No. 05920506 (Aug. 25, 1992).
Moreover, where, as here, a complainant alleges �recurring incidents�
of discrimination, �an agency is obligated to initiate an inquiry into
whether any allegations untimely raised fall within the ambit of the
continuing violation theory.� Guy v. Department of Energy, EEOC Request
No. 05930703 (Dec. 16, 1993) (citing Williams). As the Commission further
held in Williams, where an agency's final decision fails to address
the issue of continuing violation, the complaint �must be remanded for
consideration of this question and issuance of a new final agency decision
making a specific determination under the continuing violation theory.�
Accordingly, the agency must determine on remand whether allegations
(1)-(9), along with appellant's other timely allegations constitute a
continuing violation.
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 he or 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 (March 13,
1997). Therefore, the agency must determine whether allegations (10),
(11), (12), (13), and (14) state a claim when considered in light of
all of appellant's harassment allegations.
The Commission notes that the agency failed to address appellant's
allegation concerning his placement in a walking mail carrier position
despite his physical limitations and requests for accommodations.
The Commission deems the agency's action to be tantamount to a dismissal
of that matter. Appellant's submissions on appeal reveal that the EEO
Office was notified of the issue by appellant during counseling, and
appellant referenced the matter in his formal complaint. Accordingly,
the agency's dismissal of appellant's allegation concerning placement
in a walking mail carrier position despite his physical limitations and
requests for accommodations is REVERSED, and that allegation is also
REMANDED to the agency for further processing.
Appellant must be a �prevailing party� in order to collect attorney's
fees from the agency. Dailey v. Smithsonian Institution, EEOC Request
No. 05950225 (July 29, 1996). A complainant is only a prevailing party
with regard to the acceptability of his complaint for investigation
when the agency has interfered with the complainant's right to pursue
the EEO process. See Weaver v. Department of Defense, EEOC Appeal
No. 01913114 (Dec. 5, 1991) (attorney's fees allowed where the agency
fails to follow the Commission's order to process appellant's complaint
and thereby interferes with the complainant's right to pursue the EEO
process). Therefore, the Commission's reversal of an improper procedural
dismissal does not entitle a complainant to attorney's fees. See Garrity
v. Government Printing Office, EEOC Appeal No. 01966741 (March 3, 1998).
Accordingly, appellant is not entitled to attorney's fees.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint is
VACATED, and the complaint is REMANDED for further processing.
ORDER
The agency is ORDERED to perform the following:
Determine whether appellant's allegations, when considered together with
all of the allegations in appellant's claim of harassment, state a claim.
Determine whether any of allegations (1) - (9) constitute part of a
continuing violation, when considered together with any and all accepted
allegations.
Determine whether to accept for investigation appellant's allegation
that he was discriminatorily placed in a walking mail carrier position.
Thereafter, the agency shall issue a new FAD and/or notice of processing
within sixty (60) days of the date this decision becomes final.
The agency shall submit a copy of the new FAD and/or notice of processing
to the Compliance Officer as referenced herein.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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.
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:
June 30, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations